"How is the last sentence of Article 5.6 of the Sixth Directive to be interpreted in the context of the circumstances of the present case?
In particular, what are the essential characteristics of a "sample" within the meaning of the last sentence of Article 5.6 of the Sixth Directive?
(c) Is a Member State permitted to limit the interpretation of "sample" in the last sentence of Article 5.6 of the Sixth Directive to-
(i) an industrial sample in a form not ordinarily available for sale to the public given to an actual or potential customer of the business (until 1993),
(ii) only one, or only the first of a number of samples given by the same person to the same recipient where those samples are identical or do not differ in any material respect from each other (from 1993)?
(d) Is a Member State permitted to limit the interpretation of "gifts of small value" in the last sentence of Article 5.6 of the Sixth Directive in such a way as to exclude-
(i) a gift of goods forming part of a series or succession of gifts made to the same person from time to time (to October 2003),
(ii) any business gifts made to the same person in any 12-month period where the total cost exceeds £50 (October 2003 onwards)?
(e) If the answer to question (c)(ii) above or any part of question (d) above is "yes", where a taxable person gives a similar or identical gift of recorded music to two or more different individuals because of their personal qualities in being able to influence the level of exposure the artist in question receives, is the Member Stale permitted to treat those items as given to the same person solely because those individuals are employed by the same person?
(f) Would the answers to questions (a) to (e) above be affected by the recipient being, or being employed by, a fully taxable person, who would be (or would have been) able to deduct any input tax payable on the provision of the goods consisting of the sample?"
Thursday, 18 March 2010
What is a "sample"? CJ opinion next month
The Advocate General's Opinion in Case C-581/08 EMI Group Ltd v The Commissioners for Her Majesty's Revenue & Customs, a reference to the Court of Justice for a preliminary ruling, will be delivered on 15 April. The reference is not a copyright issue, since it turns on the interpretation of Sixth Council Directive 77/388 (on the harmonization of the laws of the Member States relating to turnover taxes - Common system of value added tax: uniform basis of assessment). However, it relates to the manner in which recorded materials have been used-- the giving of samples of recorded music that are not generally available to the public in order to boost sales and to promote artists --and to the tax liability for such forms of marketing. The questions before the court are as follows: