England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
(MR JUSTICE RICHARDS)

		Royal Courts of Justice Strand London WC2
		23 July 1999

LORD JUSTICE SCHIEMANN:

This is yet another in the line of cases concerning the question whether, for the purposes of VAT a package of services supplied at a single price constitutes (1) a single (composite) supply which takes its fiscal character from the dominant supply in the package, or (2) separate (multiple) supplies of different elements each of which has its own separate fiscal character. The Judicial Committee of the House of Lords, in Card Protection Plan Ltd. v Commissioners of Customs & Excise ("the CPP case") decided on 15.10.96 to make a reference to the European Court of Justice ("the ECJ") so that that court might clarify the law in this field. The judgment of the ECJ was not handed down until 25.2.99.

We are concerned with an appeal from a judgment of Richards J. delivered in June 1998. He dismissed an appeal by Pilgrims Language Courses Limited ("Pilgrims") from a decision of the VAT Tribunal and allowed a cross-appeal by the Commissioners. At the time when he delivered judgment he did not have the benefit of the ECJ's latest ruling. Nor of course did the Tribunal. They each had cited to them a number of earlier judgments both of the ECJ and of the courts of this country. The contention of the Commissioners is that the CPP judgment merely reaffirms the earlier law which they submit had been correctly applied by Richards J. The contention on behalf of Pilgrims is that Richards J erred in his application of the earlier law, in any event as interpreted and clarified in the CPP judgment.

The careful judgment of Richards J is reported in [1998] STC 784. I gratefully adopt from it this description of the context in which this case comes before this court.

"Pilgrims Language Courses Ltd. (Pilgrims) specialises in the teaching of English as a foreign language, an expression which is commonly and conveniently abbreviated to TEFL. Pilgrims runs residential TEFL courses providing total immersion in the English language - in its own phrase, "breakfast-to-bedtime tuition". Courses consist of "accuracy activities", including classroom teaching, and a wide range of "fluency activities", including sporting and recreational activities. All students have to communicate in English from the moment of their arrival at the airport to the time of their departure at the end of the course. For many courses a single fee covers tuition, activities, meals and accommodation.

In broad terms, TEFL enjoys an exemption from VAT, though it will be necessary to consider the precise nature of that exemption in a moment. The Commissioners of Customs and Excise ruled that only certain elements of Pilgrims' residential course were strictly TEFL and that the other elements were subject to VAT at the standard rate. The value added tax tribunal to a large extent allowed Pilgrims' appeal from the commissioners' ruling. The tribunal held that many of the elements, including accommodation and catering in the courses for children and young adults, were integral to the principal, exempt supply and were therefore themselves exempt from VAT. The tribunal also held, however, that other elements, including, e.g. sporting activities and excursions, were not integral to the principal supply and were therefore subject to VAT at the standard rate.

The tribunal's decision is now the subject of an appeal to this court by the commissioners and a cross-appeal by Pilgrims. In each case there is a challenge to some but not all of the findings that were adverse to the party concerned. In the case of the commissioners' appeal the main contention is that the tribunal was wrong to hold that accommodation and catering in any of the courses benefited from the exemption from VAT. In the case of Pilgrims' cross-appeal the main contention is that the tribunal should have gone that much further and held that the courses for children and young adults are composite supplies benefiting in their entirety from the exemption from VAT".

The philosophy behind Pilgrims' teaching methods is that students will make better progress if they learn not only in the classroom but also by means of using the language while engaged in activities which are enjoyable and stimulating; no matter what the students were doing throughout the day, they are at all times learning English. That philosophy accords with a body of expert opinion in the field of language teaching and in particular of TEFL. The objective must be to impart to students an ability to speak or use the language. Pilgrims' courses are intended to achieve that objective and its methods are devised for that purpose The courses vary according to the ages of the students. In each case the course is a package which, with certain exceptions, is paid for by a single sum. Each course involves a full working day for seven days a week, during all of which the activities are supervised by Pilgrims' teaching staff and are for the purpose of teaching and affording the student the means of learning English.

Each course begins with the students being met at the airport and driven to the school, with all introductions in English. At the end of the course the students are driven back to the airport and bidden farewell in English. During the course the concept of "breakfast-to-bedtime tuition" encompasses classroom teaching, meals, workshop activities (eg drama, video-making, computer practice), sporting activities, excursions (eg a guided tour of London), evening activities(eg lectures, quiz nights, barbecues, and visits to pubs or discos) and, in the case of residential course, accommodation. Teachers are present at all times. The students are grouped in such a way that their only common language is English.

The purpose of all the activities is to provide students with the motivation both to speak English and to go to the limits of their ability and beyond. It is an application of the principle that a student learns better and more readily by applying the language to doing something interesting. All the activities and excursions are devised so as to provide a continuation of the language learning process. The tribunal accepted that in most of the non-sporting activities language use plays a predominant part, but pointed out that there are many sporting activities, in which the participator is silent and others in which the language requirement is very limited and highly specialised."

It will be seen that there are a number of different courses run by Pilgrims each involving a number of supplies but that the Judge took the view that in relation to none of the supplies at issue before him ("the relevant supplies") was the exemption sought by Pilgrims available to them in law. The relevant supplies are, broadly, supplies of food and accommodation, the arranging of visits to various places of interest, transport to and from the English airport and the provision of a course photograph for the children attending the courses. I propose first of all to examine the law, then to consider whether the conclusion of the Judge can stand in the light of the judgment in the CPP case and, if not, whether some or all of the supplies in issue before this court which were made by Pilgrims are exempt from VAT.

The Legislative Background

Pilgrims' primary submission is that the relevant supplies are exempted under the 9th Schedule to the Value Added Tax Act 1994 properly construed. It is common ground that the Act should, if possible, be construed so as to accord with the EC Sixth Council Directive (77/388/EC) and in particular Article 13A thereof. I therefore set out the chief relevant provisions, first of the Directive and then of the Act. Since reference was made to the French text in argument I include it as a footnote although in the event nothing turns on any difference between the language versions.

The Directive

Article 2

The following shall be subject to value added tax:

the supply of goods or services effected for consideration ...by a taxable person ....

Article 4

1. "Taxable person" shall mean any person who independently carries out ... any economic activity specified in paragraph 2, whatever the purpose or results of that activity.

2. ...... all activities of .... producers, traders and persons supplying services...

Article 6

1. "supply of services shall mean any transaction which does not constitute a supply of goods .....

Article 13

A. Exemptions for certain activities in the public interest

1. ...... Member States shall exempt the following under conditions which they shall lay down for the purpose of ensuring the correct and straightforward application of such exemptions and preventing any possible evasion, avoidance or abuse:

.......

(i) children's or young people's education, school or university education, vocational training or retraining, including the supply of services and of goods closely related thereto, provided by bodies governed by public law having such as their aim or by other organisations defined by the Member State concerned as having similar objects^[1];

.........

2(a) Member States may make the granting to bodies other than those governed by public law of each exemption provided for in 1....(i).... of this Article subject to one or more of the following conditions :

.............

(b) The supply of services or goods shall not be granted exemption as provided for in (1).......(i)....above if:

- it is not essential to the transactions exempted,

-its basic purpose is to obtain additional income for the organisation by carrying out transactions which are in direct competition with those of commercial enterprises liable for value added tax.^[2]

The Act

s. 1

(1) Value added tax shall be charged in accordance with the provisions of this Act

(a) on the supply of goods and services ...

........

s.4

(1) VAT shall be charged on any supply of goods [or services.....] by a taxable person in the course or furtherance of any business carried on by him

(2) A taxable supply is a supply of goods and services .... other than an exempt supply.

s.5(2) (b)

anything which is not a supply of goods but is done for a consideration ..... is a supply of services

s. 31 (1)

A supply of goods or services is an exempt supply if it is of a description ...specified in Schedule 9 .....

Schedule 9 is divided into various groups and we are concerned with Group 6 which is headed "Education". Each Group contains various "items". The meaning of various expressions is to be elucidated with the help of "Notes" set out in the Schedule. We are concerned with items (1) and (4) which read as far as presently relevant

Item 1. The provision by an eligible body of -

(a) education;

........

Item 4. The supply of any goods or services .... which are closely related to a supply of a description falling within item 1 (the principal supply) by ... the eligible body making the principal supply provided -

(a) the goods or services are for the direct use of the pupil, student, trainee (as the case may be) receiving the principal supply;

........

The first of the Notes is concerned with the definition of "eligible body". It identifies by type various schools, universities and institutions. The last of these, which is the one presently relevant, reads

(f) a body not falling within paragraphs (a) to (e) above which provides the teaching of English as a foreign language.

However, the second note, at any event on one construction, cuts down the width of this exemption given to what for convenience, albeit at the risk of some inaccuracy, I shall refer to as Language Schools.

A supply by a body, which is an eligible body only by virtue of falling with Note (1)(f), shall not fall within this Group insofar as it consists of the provision of anything other than the teaching of English as a foreign language.

In the present case although some of the elements of the "package" of services at issue constitute goods, it has nevertheless not been contended that any component of the various services supplied may be regarded as constituting a "supply of goods" for VAT purposes. Accordingly, I propose to treat the case as concerning only as a supply of services.

The Item 1 Submissions : Composite Supply

Pilgrims submit

They provide TEFL and are therefore an eligible body

They provide education

They make the relevant supplies

Each of the relevant supplies is for the direct use of those attending the courses

The making of the relevant supplies is an integral part of the provision of education and falls within the exemption provided by item 1 of Group 6 of Schedule 9

The Commissioners

Accept the first four of Pilgrims' submissions

Deny that the making of any of the relevant supplies is an integral part of the provision of education

The Item 4 Submissions : Closely Related Supply

These only arise for decision if Pilgrims' submissions in relation to Item 1 are rejected. Pilgrims' submit that the relevant supplies are closely related to Pilgrims' supply of education and therefore fall within the exemption provided by item 4 of Group 6 in Schedule 9. The Commissioners submit

That while they accept that the relevant supplies are closely related to Pilgrims' supply of education, on a proper construction of note (2) the relevant supplies cannot be described as the teaching of English as a foreign language

Therefore the effect of note (2) is to deprive Pilgrims' of the benefit of the exemption which they would otherwise obtain under item 4.

Pilgrims' submit in relation to note (2)

On a proper construction of the note the relevant supplies in circumstances where these are closely related to the teaching of English as a foreign language can be described as part of the teaching of English as a foreign language

Thus construed, the note does not deprive Pilgrims' of the exemption

Alternatively, if this is not so, Pilgrims can rely on a directly enforceable right under Community Law to be exempted from VAT in respect of the relevant supplies.

The Commissioners submit in relation to the third of these contentions that the Sixth Directive properly construed does not give Pilgrims any right to be exempted from VAT in respect of this supply.

The Case Law

1. The proper approach to construction of the Directive is to be found in Stichting Uitvoering Financiele Actiës v Staatssecretaris van Financien (Case 348/87) a case in which Article 13 (A) (1) (f) fell to be considered by the ECJ. The case is authority for the proposition that

13. It is clear ......... that the terms used to specify the exemptions envisaged by Article 13 of the Sixth Directive are to be interpreted strictly since they constitute exemptions to a general principle that turnover tax is levied on all services supplied for consideration by a taxable person.

14. ........ since the conditions for exemptions are precisely formulated, any interpretation which broadens the scope of Article 13A (1)(f) of the Sixth Directive would be incompatible with the objective of that provision.

2. The position of the Judge and this Court in relation to reviewing findings of the Tribunal appears from British Airways Plc v Customs & Excise Commissioners [1990] STC 643 a decision of this Court. In that case Lord Donaldson M.R. said at page 645:

"The only authority which I have found relevant or helpful is the decision of this Court in the British Railways Board v Customs & Excise Commissioners [1977] 1 WLR 558. This establishes that the liability to tax depends on "the legal effect of the transaction considered in relation to the words of the statute. And this is a question of law" (per Lord Denning M.R. [1977] 1 WLR 588 at 591). Similarly, per Browne LJ.. [1977] 1 WLR 588 and 595

"The question is whether, on the true construction of the Finance Act 1972 as applied to the undisputed facts and documents, this was a zero-rated supply. That is a question of law".

3. The proper approach to Directives appears from Becker v Finanzamt Muenster-Innenstadt Case 8/81 a leading judgment of the ECJ concerned with the Sixth Directive and Article 13. The most significant paragraphs are:

25. ....wherever the provisions of a Directive appear, as far as the subject matter is concerned, to be unconditional and sufficiently precise, those provisions may, in the absence of implementing measures adopted within the prescribed period, be relied upon as against any national provision which is incompatible with the Directive or insofar as the provisions defined rights which individuals are able to assert against the State.

27. In as much as it specifies the exempt service and the person entitled to the exemption, the provision, taken by itself, is sufficiently precise to be relied upon by an individual and applied by the Court. However, it remains to be considered whether the right to exemption which it confers may be considered to be unconditional, having regard to the general scheme of the Directive, to the context in which Article 13 is placed and also to the particular characteristics of the system of taxation within which the exemption is to apply.

30. Consequently, the general nature of the Directive in question or the discretion which, in other areas, it leaves to the Member States may not be relied upon in order to deny any effect to those provisions which in view of subject-matter may be relied upon to good purpose before a Court even though the Directive as a whole has not been implemented.

32. It should first be observed... that the "conditions " referred to do not in any way affect the definition of the subject-matter or the exemption conferred.

33. The "conditions"" referred to are intended to ensure the correct and straightforward application of the exemption. A Member State may not rely, as against a tax payer who is able to show that his tax position actually falls within one of the categories of exemption laid down in the Directive, upon its failure to adopt the very provisions which are intended to facilitate the application of that exemption.

34. Moreover, the "conditions" refer to measures intended to prevent any possible evasion, avoidance, or abuse. ...

35. The argument based on the introductory sentence of Article 13 B must therefore be rejected.

The ECJ in EC Commission v Spain (Case CE/124/96) followed this approach and applied it to Article 13 A(i) and held:

11. It should be observed .... that the conditions which may be laid down pursuant to Article 13 A (i) of the Sixth Directive do not in any way affect the definition of the subject matter of the exemptions envisaged by that provisions (see Becker at paragraph 32)

12. These conditions are intended to ensure the correct and straight forward application of the exemptions and refer to measures intended to prevent any possible evasion, avoidance or abuse (see Becker paragraphs 33 and 34).

4. There are two leading ECJ cases on composite supply, neither of which were before the Judge. In my citations from them I emphasise certain passages which indicate the broad approach of the ECJ to the problems with which we are concerned.

In Customs & Excise Commissioners v Madgett and Baldwin (joined case C/308/96 and C/94/97 [1998] STC 1189) the ECJ was asked for its ruling in these circumstances. The Sixth Directive has a special regime which is applicable to travel agents. Travel agents are however not defined. The tax payers ran a hotel in Torquay and had made arrangements with a coach hire firm during the high season under which a coach was made available with a driver to collect and return customers from and to pick up points in the north of England. The problem was on what basis was VAT to be charged : was it to be on the basis that the taxpayers were travel agents or was it to be charged simply in accordance with the usual practice. Advocate General Léger said this:

34. The criteria for identifying traders who carry on the activity of travel agents within the meaning of Article 26 of the Sixth Directive are not easy to define where some of the services offered are provided by the trader himself while others are bought in from third parties. At the hearing it became clear that a hotel could offer its customers services provided by third parties, not part of its activities sensu stricto, without it thereby being justified in my opinion, to class it as a travel agents. That is so where a hotel arranges a taxi service for its customers for journeys to a nearby station or airport.

35. The criterion used by the German Government, namely that the activity of a trader the object of whose business is not to organise travel or tours does not change its character if the services associated with his activity remain ancillary, is of some help.

36. I consider that a service is ancillary if, first, it contributes to the proper performance of the principal service and, second, it takes up a marginal proportion of the package price compared to the principal service. It does not constitute an object for customers or a service sought for its own sake, but a means of better enjoying principal service.

The Court held

24. However, as the Advocate General notes in paragraph 36 of his opinion, traders such as hoteliers who provide services habitually associated with travel frequently make use of services bought in from third parties which take up a small proportion of the package price compared to the accommodation and are among the tasks traditionally entrusted to such traders. Those bought-in services do not therefore constitute for customers an aim in itself (sic), but a means of better enjoying the principal service supplied by the trader.

25. In such circumstances the services bought in from third parties remain purely ancillary in relation to the in-house services, and the traders should not be taxed under Article 26 of the Sixth Directive.

26. Where, however, a hotelier habitually offers his customers in addition to accommodation, services which appear beyond the tasks traditionally entrusted to hoteliers, and which cannot be carried out without substantial effect on the package price charged, such as travel to the hotel from distant pick-up points, such services are not to be acquainted with purely ancillary services.

In CPP the issue was whether Card Protection Plan could benefit from an exemption from VAT given to the provision of insurance. The problem was that they provided more than was accepted as being exempt. The Court described CPP's activities by saying

7. CPP offers holders of credit cards, on payment of a certain sum, a plan intended to protect them against financial loss and inconvenience resulting from the loss or theft of their cards or of certain other times such as car keys, passports and insurance documents.

8. Insofar as the plan provides for indemnification of the card-holder against financial loss in the event of loss or theft, CPP obtains block cover from an insurance company. When a card holder becomes a customer of CPP his name is added to the Schedule of the Assured covered by that policy.

Paragraphs 9 and 10 of the judgment set out the series of services provided by CPP. In its judgment on a reference by the House of Lords the Court said this:

26. By its first two questions, which should be taken together, the national court essentially asks, with reference to a plan such as that offered by CPP to its customers, what the appropriate criteria are for deciding, for VAT purposes, whether a transaction which comprises several elements is to be regarded as a single supply or as two or more distinct supplies to be assessed separately.

27. It must be borne in mind that the question of the extent of a transaction is of particular importance, for VAT purposes, both for identifying the place where the services are provided and for applying the rate of tax or, as in the present case, the exemption provisions in the Sixth Directive. In addition, having regard to the diversity of commercial operations, it is not possible to give exhaustive guidance on how to approach the problem correctly in all cases.

28. However, as the Court held in Case C-231/94 Faaborg-Gelting Linien v Finanzamt Flensburg [1996] ECR 1-2395, paragraphs 12 to 14, concerning the classification of restaurant transactions, where the transaction in question comprises a bundle of features and acts, regard must first be had to all the circumstances in which that transaction takes place.

29. In this respect, taking into account first, that it follows from Article 2 (1) of the Sixth Directive that every supply of a service must normally be regarded as distinct and independent and, second, that a supply which comprises a single service from an economic point of view should not be artificially split, so as not to distort the functioning of the VAT system, the essential features of the transaction must be ascertained in order to determine whether the taxable person is supplying the customer, being a typical consumer, with several distinct principal services or with a single service.

30. There is a single supply in particular in cases where one or more elements are to be regarded as constituting the principal service, whilst one or more elements are to be regarded, by contrast, as ancillary services which share the tax treatment of the principal service. A service must be regarded as ancillary to a principal service if it does not constitute for customers an aim in itself, but a means of better enjoying the principal service supplied^[3] (Commissioners of Customs and Excise v Madgett and Baldwin, paragraph 24).

31. In those circumstances, the fact that a single price is charged is not decisive. Admittedly, if the service provided to customers consists of several elements for a single price, the single price may suggest that there is a single service. However, notwithstanding the single price, if circumstances ..... indicated that the customers intended to purchase two distinct services, namely an insurance supply and a card registration service, then it would be necessary to identify the part of the single price which related to the insurance supply, which would remain exempt in any event.

There are two decisions of this court which preceded the judgment in CPP but which are useful illustrations of the present problem in different settings. Again I emphasise certain passages.

The first is British Airways Plc v Customs & Excise Commissioners [1990] STC 643. The issue in that case was whether or not there was one supply which was zero rated as being "Transport of passengers in any ..... aircraft designed..... to carry not less than twelve passengers" and which supply embraced the supply of in-flight catering or whether there were two supplies only one of which was zero rated. The Court accepted that the answer might well be one of first impression. The Tribunal had held that there were two supplies. Otton J. that there was one. Dismissing the appeal Lord Donaldson of Lymington MR said, after quoting a passage of the Tribunal, :

"This passage shows that it was in fact answering a different question, viz "was the supply of food and beverages a necessary or incidental adjunct of the Air Transportation?" the answer to which was clearly that it was not. Until commercial pressures built up, there was no in-flight catering on this domestic services. This is not, however, the right question. The reality is that transportation by air can be of different classes or qualities. Air carriers..... could have provided and have in the past provided transportation without any in-flight catering and at the present time they can and do provide it on greatly varying scales and with different degrees of luxury ranging from plastic containers adorned by a cup of tea or coffee and a biscuit to........ a multi-course dinner served on china with high quality cutlery which would not disgrace a five star hotel. The air passenger chooses from what is on offer, and pays for, whichever degree of luxury or lack of it he requires, but the choice is between grades of air transportation, not between grades of transportation and separate grades of in-flight catering..... There is single supply and it is of air transportation.

In Customs & Excise Commissioners v Wellington Private Hospital Ltd. [1997] STC 445 the issue was whether (i) the provision of drugs to in-patients in private hospitals and (ii) the supply and surgical fitting of prostheses, such as artificial hip joints or pace-makers, to such patients are zero rated for VAT. The difficulty arose because the supply of drugs or prostheses in the course of hospital or medical care would only qualify for zero rating if they retained their character as supplies of goods rather than being part and parcel of a supply of the service of medical care. Millett LJ. said at page 462:

"The issue is not whether one element of a complex commercial transaction is ancillary or incidental to, or even a necessary or integral part of, the whole, but whether one element of the transaction is merely ancillary or incidental to, or a necessary or integral part of, any other element of the transactions. The reason why the former is the wrong question is that it leaves the real issue unresolved; whether there is a single or a multi supply. The proper inquiry is whether one element of the transaction is so dominated by another element as to lose any separate identity as a supply for fiscal purposes, leaving the latter, the dominant element of the transaction as the only supply. If the elements of the transaction are not in this relationship with each other, each remains a supply in its own right with its own separate fiscal consequences.

He said at page 464;

"If one asks what is the real and substantial consideration provided to the patient for his money, there can in my view be little doubt about the answer. Just as the air passenger pays for transportation, so the hospital patient pays for care and treatment. But while the air passenger would regard the provision of in-flight catering, in-flight entertainment, and toilet facilities as merely incidental to his transportation by air from his point of departure to his destination, the hospital patient would not regard the provision of drugs and prostheses in the same light. They are an essential part of the care and treatment, perhaps a most important part without which the treatment would not succeed, and certainly an important part of what he has contracted for. As counsel for the appellants observed, the man who takes his car to the local garage for servicing contracts for labour and materials, which is to say for goods and services; it is not different when he takes his body to hospital for treatment.

In my opinion, it is only if one begins by assuming that "hospital treatment" is a single supply that it is possible to conclude that the supply of drugs or prosthesis is an integral part of that supply. ......... This conclusion is supported by a further consideration. In most cases, the actual drugs administered to the patient are charged to him and paid for in accordance to the price list, so that the total bill he pays at the end of his stay depends upon the type and quantity of the drugs supplied. In such cases it is impossible to deny that the drugs in question form the consideration for the payment, or that the supply of the drugs is "physically and economically disassociable" from the other items charged for."

Subsequent to the conclusion of the argument in the present case, and indeed the preparation of this judgment, the opinions of the Lords of Appeal in Customs and Excise Commissioners v British Telecommunications PLC were handed down on 1 July 1999 and counsel have been good enough to draw them to our attention. I find nothing in those opinions which is inconsistent with my conclusions which I now propose to state or which calls for further submissions from counsel.

Conclusions on the proper Construction and application of the Directive.

Member States are under an obligation to exempt certain supplies by certain organisations;

In the educational field this obligation applies to the provision of education by bodies governed by public law and by organisations ("defined organisations") defined by Member States "as having similar objects". It has been common ground in argument that Member States are at liberty not to define any organisations even though they do "have similar objects". Similarly it has been common ground that Member States are at liberty to define organisations in such a way that where an organisation carries out several of the activities set out in subparagraph (i) some of them are excluded. Thus education could be included but not vocational training. I would not wish to be taken as necessarily assenting to what appears to be common ground between the parties but there is no need in this judgment to elaborate why I have hesitations.

Member States are empowered to impose conditions on the grant of exemption. Paragraph 1 applies both to bodies governed by public law and to defined organisations. The only conditions which may be imposed under paragraph 1 are those laid down "for the purpose of ensuring the correct and straightforward application of such exemptions and preventing any possible evasion, avoidance or abuse". The exclusion, by way of condition, of "the supply of services and goods closely related to [education]" is only permissible under paragraph 1 if intended to achieve that purpose. No such exclusion has been imposed on both bodies governed by public law and defined organisations in the present case.

A crucial part of the Commissioners' submission is that it is permissible under Community law to achieve such exclusion by the use of the process of definition. If that be right then the defined organisations will not be exempt in circumstances where bodies governed by public law are exempt. I would reject this submission. As it seems to me, when one looks at the whole list of circumstances set out in Article 13A(1), the Commission has left to Member States the task of identifying the relevant bodies but has not left to Member States the option of refusing to exempt supplies when made by eligible bodies while accepting an exemption when the same supplies are made by bodies governed by public law. That is not part of the definition function. Paragraph 2(a) expressly permits some differential treatment of supplies by defined organisations but that paragraph, however, has no present application.

Paragraph 2(b) of Article 13A applies both to bodies governed by public law and to defined organisations. It is, I think, common ground that the conditions there set out are cumulative although we were referred to no authority on the point. In any event in my judgment if the supply merely fulfills one of those conditions that is not enough to exclude it. I have come to that conclusion chiefly because

the legislator in Article 13A paragraph 1(i) manifests an intention to grant exemption to supplies of services closely related to the supply of [education];

the reference to such closely related supplies would not be necessary unless the exemption was intended to embrace supplies which could not properly described as the supply of education;

services which can not be described as the supply of education will seldom, if ever, be regarded as essential to [education].

It has been common ground that the present is not a case where the second of the conditions set out in the paragraph is fulfilled. Therefore the paragraph is of no further present relevance.

Conclusions on the proper Construction and Application of the Act

Pilgrims has been defined as an eligible body. That is achieved by note (1).

Note (2) should not be construed so as to exclude supplies which are "closely related" to teaching of English as a foreign language because if the note were to be construed in such a way it would put the UK in breach of the Directive as I have construed it.

Note (2) can be given a sensible construction consonant with the Directive (construed as the parties are agreed that it can be construed) namely by excluding, for instance, the supply of teaching of German by language schools.

The task of the Court is to look at each course separately and to adopt in each case the approach indicated in paragraphs 29-31 of CPP. Thus the Court must

(i) identify the various supplies involved

(ii) establish whether one or more principal supplies are involved

(iii) if there are more than one principal supplies establish, in relation to ancillary supplies, to which principal supply each ancillary supply is ancillary.

The Tribunal's findings

The Tribunal held

89. For the reasons given above, we have come to the following conclusions.

(1) There appears to us no reason in law why Note (2) should be construed so narrowly as is contended for by the Commissioners,. The expression "teaching English as a foreign language" is, in our judgment, apt to mean all that is necessary for the purpose of imparting to the student the grammar, vocabulary, spelling, and usage of the English language and of assisting the student to take in, retain, understand, and think in that language so as to be able to communicate in it, orally and in writing. There is nothing in Note (2) contrary to that definition.

(2) Each course should be considered separately, since there are certain differences between one course and another as to their nature.

(3) Each course consists in a number of supplies. The answer to the question, what in substance and reality was supplied by the appellants in consideration of the payment made by or on behalf of the students is, that it is a course in English taught as a foreign language. In the case of each course, therefore, the principal supply is that of teaching English as a foreign language. There are some supplies which are clearly integral to the principal supply, and those supplies, together with the principal supply, constitute a single supply. That single supply is not susceptible to being dissected to see whether any component thereof is or is not strictly teaching English as a foreign language, since that supply, as a whole, is one of teaching English as a foreign language. There is nothing in Note (2) which requires such a dissection, once it is established that there is a single supply of teaching English as a foreign language.

(4) the supplies which, in all courses, are integral to the principal supply, are

(a) accommodation in a class-room, or other place in which to conduct classes;

(b) all such books, vocabularies, writing materials and other equipment as are necessary for teaching, whether in a class-room situation or otherwise;

(c) the provision of teaching, by qualified staff, whether in a class-room situation or otherwise, including during all fluency activities.;

(d) in fully residential courses, the provision of breakfast, lunch, tea, and dinner.

(5) There are also supplies which are components of the courses which are not integral to the principal supply, and do not fall within the definition of teaching English as a foreign language which we have given in paragraph 89 (1) above. These are not part of the principal supply, and therefore fall within Note (2). Those common to all courses are

(a) sporting activities;

(b) principally or wholly recreational activities, such as visits to pubs, theatres, discos, cinema, barbecues;

(c) transport on excursions to places of interest or local shopping trips;

(d) transport to and from the airport or station;

(e) course photograph and certificate.

(6) CHILDREN'S COURSES

It is the nature of a children's residential course that residential accommodation and catering are essential and integral to the carrying on of such a course. Without them, the course would be either impossible to conduct, or a very different kind of course. Both therefore form a part of the principal supply of teaching English as a foreign language.

(7) YOUNG ADULTS; COURSES

Bearing the age-group in mind, in these courses also, for the same reasons as in children's courses, residential accommodation and catering are essential and integral to the carrying on of the course, and, therefore, to the principal supply.

(8) ADULTS AND BUSINESS STUDENTS

Accommodation and catering are charged separately, and in the case of adults accommodation is not integral to the principal supply. However, as with all the courses, meals, whether students and teachers together, or students with their host families, are intended to be continuations of teaching and fluency practice, and are integral to the principal supply.

The Judge's Reasoning

The judge's reasoning appears from pages 799 onwards of the report. In essence he rejected the Tribunal's approach because he looked at the matter in the abstract and pointed out that eating and, even more, sleeping are not an essential part of learning a language. Therefore, he held, the Item 1 Composite Supply route to exemption was not open to Pilgrims since sleeping could hardly be described as part of education. So far as the Item 4 Closely Related Supply route to exemption was concerned, he held that this was not open to Pilgrims because it was excluded by note (2).

Conclusion

I have shared many of the difficulties which the tribunal and the judge acknowledged. We have been considerably helped by the able submissions of counsel on each side. Above all we have the advantage denied to the tribunal and the Judge of the CPP decision. Looking at matters in the light of that decision and applying the approach which I have indicated above under the heading "Conclusions on the proper construction and application of the Act", I have however come to a clear view in relation to each of the disputed supplies and it is the opposite of the view formed by the Judge. I would decide these appeals as follows.

I would allow Pilgrims' appeal against the Judge's decision that the provision of meals (in all fully residential courses) and the provision of accommodation in the children's, young adults' and teachers' courses are not exempt. Here the Judge overruled the decision of the tribunal and I would restore its decision. I am content to arrive at this conclusion by holding either (a) that this supply was closely related to the supply of teaching of English as a foreign language, falls within item 4 and that such a supply is not excluded from exemption by Note (2) or (b) that, applying the test in CPP, it is clear that neither the provision of food and nor the provision of accommodation constituted for the customers in the present case an aim in itself but was in each case a means of better enjoying the principal service supplied and that therefore the composite supply falls within item 1 to which note (2) has no application. So Pilgrims should succeed by either of the routes proposed by them.

I would allow Pilgrims' appeal against the Judge's decision that the excursions, transport to and from the airport, course photograph, certificate etc. provided in the children and young adults' course are not exempt for the same two reasons.

I note that Pilgrims did not appeal against the decision of the Tribunal that the provision of accommodation and excursions etc. in the other courses are not exempt. The Judge therefore did not deal with them nor should we.

The Commissioners accepted that the appellant was an excellent and genuine provider of teaching of English as a foreign language. However, they emphasised before us, as they had emphasised before the Tribunal and the Judge, that their main concern was the scope for abuse by less scrupulous operators that would be afforded by allowing these appeals. In my judgment the application of the recent guidance given by the ECJ will enable the Commissioners and ultimately the Court to sort the sheep from the goats. Where the teaching of English as a foreign language exemption is used as a mere device it should not be difficult in an appropriate case to come, on making a judgment of fact and degree, to the conclusion that the other goods or services are not purely ancillary but rather constitute for the customer aims in themselves. So far as the Directive is concerned most of the goats will be caught by Article 13A(2)(b).

LORD JUSTICE MANTELL: I agree

LADY JUSTICE BUTLER-SLOSS: I also agree

Order: Appeal allowed with costs in the Court of Appeal and the High Court and order for costs in the tribunal be varied by substituting an order that the respondent pay 90% of the appellant's costs. (This order does not form part of the approved judgment)

Note 1   l’éducation de l’enfance ou de la jeunesse, l’enseignement scolaire ou universitaire, la formation ou le recyclage professionel, ainsi que les prestations de services et les livraisons de biens qui leur sont étroitement liées, effectués par des organismes de droit public de même objet ou par d’autres organismes reconnus comme ayant des fins comparables par l’État membre concerné.    [Back]

Note 2   2 (a) Les États membres peuvent subordonner, cas par cas, l’octroi, à des organismes autres que ceux de droit public, de chacune des exonérations prévues au paragraphe 1 sous .....i) ... au respect de l’une ou plusieurs des conditions suivantes : .......... b) Les prestations de services et les livraisons de biens sont exclues de bénéfice de l’exonération prévue au paragraphe 1) sous ....i) ... si: - elles ne sont pas indispensables a l’accomplissement des opérations exonérées, - elles sont essentiellement destinées à procurer à l’organisme des recettes supplémentaires par la réalisation d’opérations effectuées en concurrence directe avec celles d’entreprises commerciales soumises à la taxe sur la valeur ajoutée.    [Back]

Note 3   Une prestation doit être considérée comme accessoire à une prestation principale lorsqu’elle ne constitue pas pour la clientèle une fin en soi, mais le moyen de bénéficier dans les meilleures conditions du service principale du prestataire    [Back]