TUI Belgium (VAT - Transactions subject to VAT - Supply of services for consideration - Judgment) [2026] EUECJ T-221/25 (25 March 2026)

Judgment The request for a preliminary ruling concerns the interpretation of Article 28(3)(a) and (4) of and Annex E(15) to Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes – Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1) ('the Sixth Directive') and of Article 370 of and Annex X, Part A, point (4), to Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1) ('the VAT Directive'). The request has been made in proceedings between nine Belgian companies, together forming Travel4You, a group comprising those nine companies and treated as a single taxable person in respect of Value Added Tax (VAT), represented by TUI Belgium NV, of the one part, and Belgische Staat (Belgian State), of the other, concerning the rejection of an application for a VAT refund made by TUI Belgium and by Travel4You in respect of the supply of services by travel agents in relation to travel outside the European Union. Legal context European Union law Sixth Directive Article 26 of the Sixth Directive, entitled 'Special scheme for travel agents', was worded as follows: '1. Member States shall apply value added tax to the operations of travel agents in accordance with the provisions of this Article, where the travel agents deal with customers in their own name and use the supplies and services of other taxable persons in the provision of travel facilities. This Article shall not apply to travel agents who are acting only as intermediaries and accounting for tax in accordance with Article 11A(3)(c). … … 3. If transactions entrusted by the travel agent to other taxable persons are performed by such persons outside the Community, the travel agent's service shall be treated as an exempted intermediary activity under Article 15(14). … …' Article 28 of the Sixth Directive, in Title XVI, which is entitled 'Transitional provisions', provided as follows: '… 3. During the transitional period referred to in paragraph 4, Member States may: (a) continue to subject to tax the transactions exempt under Article 13 or 15 set out in Annex E to this Directive; … 4. The transitional period shall last initially for five years as from 1 January 1978. At the latest six months before the end of this period, and subsequently as necessary, the Council shall review the situation with regard to the derogations set out in paragraph 3 on the basis of a report from the Commission and shall unanimously determine on a proposal from the Commission, whether any or all of these derogations shall be abolished. …' The transactions referred to in Article 15(14) of the Sixth Directive and listed in Annex E thereto included 'the services of travel agents referred to in Article 26, and those of travel agents acting in the name and on account of the traveller, for journeys outside the Community'. VAT Directive According to Article 153 of the VAT Directive: 'Member States shall exempt the supply of services by intermediaries, acting in the name and on behalf of another person, where they take part in the transactions referred to in Chapters 6, 7 and 8, or [in] transactions carried out outside the Community. …' Chapter 3 of the VAT Directive, entitled 'Special scheme for travel agents', contained in Title XII, entitled 'Special schemes', contains Articles 306 to 310. Article 306(1) of the VAT Directive is worded as follows: 'Member States shall apply a special VAT scheme, in accordance with this Chapter, to transactions carried out by travel agents who deal with customers in their own name and use supplies of goods or services provided by other taxable persons, in the provision of travel facilities. This special scheme shall not apply to travel agents where they act solely as intermediaries and to whom point (c) of the first paragraph of Article 79 applies for the purposes of calculating the taxable amount.' Article 309 of the VAT Directive provides as follows: 'If transactions entrusted by the travel agent to other taxable persons are performed by such persons outside the Community, the supply of services carried out by the travel agent shall be treated as an intermediary activity exempted pursuant to Article 153. …' Article 370 of the VAT Directive provides as follows: 'Member States which, at 1 January 1978, taxed the transactions listed in Annex X, Part A, may continue to tax those transactions.' Annex X to the VAT Directive, in Part A, entitled 'Transactions which Member States may continue to tax', refers, in point (4), to: 'the supply of the services of travel agents, as referred to in Article 306, and those of travel agents acting in the name and on behalf of the traveller, in relation to journeys outside the Community'. Belgian law It is apparent from the order for reference and from the documents submitted to the Court that the relevant Belgian law is contained in the Wetboek van de belasting over de toegevoegde waarde (Value Added Tax Code), in the version in force at the time of the facts in the main proceedings ('the VAT Code'). Between 1 December 1977 and 31 December 1999, Article 20(2) of the VAT Code provided as follows: 'Where a travel agent takes part in the provision of transport, accommodation, food or beverages consumed on the premises, entertainment or one or more of those services referred to in Article 18, it shall be treated as acting in the name and on behalf of the traveller, irrespective of the arrangements under which it takes part, save to the extent that it provides those services directly using its own means or acts in the name of and on behalf of the supplier of those services. For the purposes of applying the present code, “travel agent” shall be understood to mean any person engaged either in organising and selling package travel or stays that include, inter alia, accommodation, or in selling, as intermediary, package travel or stays, transport tickets or accommodation or meal vouchers.' Between 1 January 1978 and 31 December 1999, Article 41(2) of the VAT Code provided as follows: 'Services supplied by brokers and agents not acting in accordance with the conditions referred to in Article 13(2) shall be exempt from VAT where those brokers and agents take part in supplies of goods or services not performed in Belgium or which are exempt under Articles 39 to 42. That exemption shall not apply to supplies by travel agents taking part in the provision of transport, accommodation, food or beverages consumed on the premises, entertainment or one or more of those services referred to in Article 18, unless the travel agent acts in the name of and on behalf of the supplier of those services.' It is also apparent from the order for reference that the VAT Code was amended by the koninklijk besluit (royal decree) of 28 December 1999 ( Belgisch Staatsblad , 31 December 1999, p. 50507) ('the royal decree of 28 December 1999'), which was applicable from 1 January 2000. Pursuant to that decree, the supply of services by travel agents in relation to travel outside the European Union was no longer treated as an intermediary activity. Those transactions nevertheless continued to be subject to VAT. The dispute in the main proceedings and the questions referred for a preliminary ruling TUI Belgium, in its own name, sells holiday travel, for which it calls on the services of third parties, including hotels and airlines. It is apparent from the order for reference that the applicants in the main proceedings made a number of applications to be refunded the VAT applied to the supply of services provided by TUI Belgium in relation to travel outside the European Union. They argued before the tax authorities that that supply had been exempt from VAT since the amendment of the VAT Code by the royal decree of 28 December 1999, which came into force on 1 January 2000, and accordingly applied to be refunded the VAT unduly paid by them on that supply for the period between November 2004 and December 2014. The tax authorities refused to refund that VAT. Following that refusal, the applicants in the main proceedings brought proceedings before the rechtbank van eerste aanleg West-Vlaanderen, afdeling Brugge (Court of First Instance, West Flanders, Bruges Division, Belgium), which, by its judgment of 7 January 2020, dismissed the action, holding that the applicants in the main proceedings were not entitled to a refund of the VAT on the supply of services by travel agents in relation to travel outside the European Union in respect of the period referred to above. The applicants in the main proceedings lodged an appeal against that judgment before the hof van beroep te Gent (Court of Appeal, Ghent, Belgium). By its judgment of 22 March 2022, the hof van beroep te Gent (Court of Appeal, Ghent) held, in essence, that, from 1 January 2000, the supply of services by travel agents in relation to travel outside the European Union continued to be subject to VAT, by derogation from Article 26(3) of the Sixth Directive and Article 309 of the VAT Directive. The hof van beroep te Gent (Court of Appeal, Ghent) noted in particular that, first, in respect of the supply of services by travel agents in relation to travel outside the European Union, the Belgian State had availed itself of the standstill clause, established in Article 28(3)(a) of the Sixth Directive and Article 370 of the VAT Directive, which allowed a Member State to continue to apply VAT to the transactions that it was already taxing on 1 January 1978 provided they were included in Annex E to the Sixth Directive and in Annex X to the VAT Directive. Second, from 1 January 2000, following the entry into force of the royal decree of 28 December 1999, the VAT Code provided that travel agents act in their own name, in line with the first paragraph of Article 306(1) of the VAT Directive. Accordingly, the second subparagraph of Article 41(2) of the VAT Code, which expressly excluded travel agents from the VAT exemption applicable to brokers and agents in relation the supply of goods and services abroad, was deleted, since it had become superfluous in a context in which the statutory presumption under the first paragraph of Article 20(2) of the VAT Code, according to which travel agents were 'treated as acting in the name and on behalf of the traveller' as the latter's agent, had also been removed. The sole intention of the Belgian legislature in doing so was to respond to the letter of formal notice from the European Commission acting on a complaint according to which the Belgian legislation had been liable to give rise to double taxation as a result of that statutory presumption. The regime in question, in place from 1 January 2000, was in keeping with the standstill clause established in Article 28(3)(a) of the Sixth Directive and Article 370 of the VAT Directive, since it involved continuing to apply VAT to the supply of services by travel agents in relation to travel outside the European Union that was already subject to VAT before 1 January 1978. The applicants in the main proceedings lodged an appeal on a point of law against the judgment of the hof van beroep te Gent (Court of Appeal, Ghent) to the Hof van Cassatie (Court of Cassation, Belgium), which is the referring court. They claim, in essence, that from 1 January 2000, Belgian law has no longer contained an express provision derogating from the exemption from VAT for the supply of services by travel agents in relation to travel outside the European Union. First, merely defining a travel agent as acting in its own name in fact corresponds to the definition in the Sixth Directive. Second, as a result of the deletion of the second subparagraph of Article 41(2) of the VAT Code, as from 1 January 2000, that code has no longer established an express derogation from the VAT exemption for the supply of services by travel agents in relation to travel outside the European Union. In the absence of such an express provision, the Belgian State was no longer able, from 1 January 2000, to apply VAT to that supply without infringing the combined provisions of Article 26(3) and Article 15(14) of the Sixth Directive and Article 309 and the first paragraph of Article 153 of the VAT Directive. In any event, the provisions inserted in the VAT Code by the royal decree of 28 December 1999, in respect of the application of VAT to that supply, are based on an approach that differs from that of the previous legislation, since those provisions provide only implicitly that the supply of services by travel agents in relation to travel outside the European Union are not among those to be treated as transactions by an intermediary that are exempt under Article 15(14) of the Sixth Directive and the first paragraph of Article 153 of the VAT Directive. The referring court considers that it cannot be determined with certainty from the existing case-law of the Court of Justice either whether, in those circumstances, an express statutory provision is required in order to continue to apply VAT to the supply of services by travel agents in relation to travel outside the European Union, under Article 28(3)(a) and (4) of the Sixth Directive and Article 370 of the VAT Directive, or whether the new regime included in the VAT Code by the royal decree of 28 December 1999 is 'identical in its main points' to the legislation in force previously, even though it no longer establishes an express derogation from the VAT exemption for that supply. In those circumstances, the Hof van Cassatie (Court of Cassation) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: '(1) Does the application of the standstill clause [provided for in] Article 28(3)(a) and (4) of and Annex E[(15)] to [the Sixth Directive], now Article 370 of and Annex X, Part A, point [(4),] to [the VAT Directive], require an express legal provision derogating from the VAT exemption for travel agencies for travel services outside the European Union laid down in Article 26(3) of [the Sixth Directive], now Article 309 of [the VAT Directive]? (2) Should Article 28(3)(a) and (4) of and Annex E[(15)] to [the Sixth Directive], now Article 370 of and Annex X, Part A, point [(4),] to [the VAT Directive], be interpreted as meaning that an amendment made to existing legislation after the entry into force of [the Sixth Directive], whereby the express statutory provision which resulted in the taxability of travel services provided by travel agencies outside the [European Union] is deleted and replaced by provisions from which it follows only implicitly that travel services outside the [European Union] remain taxable, must be regarded as legislation which is not identical in its main points to the previous legislation and is based on a different main idea?' Consideration of the questions referred The first question By its first question, the referring court is seeking to ascertain, in essence, whether Article 28(3)(a) and (4) of and Annex E(15) to the Sixth Directive and Article 370 of and Annex X, Part A, point (4), to the VAT Directive must be interpreted as meaning that the derogating regime that they establish requires a national statutory provision expressly establishing a derogation from the VAT exemption for the supply of services by travel agents in relation to travel outside the European Union laid down in Article 26(3) of the Sixth Directive and in Article 309 of the VAT Directive. In that regard, it must be borne in mind that, under Article 26(3) of the Sixth Directive and Article 309 of the VAT Directive, if transactions entrusted by the travel agent to other taxable persons are performed by such persons outside the European Union, the supply of services by that travel agent is to be treated as an intermediary activity that is exempt pursuant to Article 15(14) of the Sixth Directive and the first paragraph of Article 153 of the VAT Directive. However, Article 28(3) of the Sixth Directive introduced a derogating regime under which the Member States may, during the transitional period referred to in Article 28(4) of that directive, continue to apply VAT to the transactions that are exempt from that tax pursuant to Article 15 of that directive set out in Annex E thereto, which include in particular 'the services of travel agents referred to in Article 26, and those of travel agents acting in the name and on account of the traveller, for journeys outside the Community'. In addition, Article 370 of the VAT Directive reproduced, in essence, the terms of Article 28(3) of the Sixth Directive, by providing that Member States which, at 1 January 1978, taxed the transactions listed in Annex X, Part A, to the VAT Directive may continue to tax those transactions. Point (4) of Part A of that annex refers to the supply of the services of travel agents acting in the name and on behalf of the traveller, in relation to journeys outside the European Union. The Court of Justice has already held in that respect that Article 370 of the VAT Directive, read in conjunction with point (4) of Part A of Annex X to that directive, did not infringe EU law by granting Member States a right to continue to tax the supply of the services of travel agents in relation to travel outside the European Union (judgment of 13 March 2014, Jetair and BTWE Travel4you , C‑599/12, EU:C:2014:144 , paragraph 51). As regards the arrangements under which the Member States may avail themselves of the right granted to them to continue to tax the supply of services by travel agents in relation to travel outside the European Union, it should be noted that there is nothing in the wording of Article 28(3)(a) of the Sixth Directive, or in that of Article 370 of the VAT Directive, to suggest that the EU legislature required the adoption of a national statutory provision expressly establishing a derogation from the exemption laid down in Article 26(3) of the Sixth Directive and in Article 309 of the VAT Directive and permitting the continued application of VAT to such a supply. It is apparent from the wording of Article 28(3) and (4) of the Sixth Directive, read in conjunction with Article 15(14) of and Annex E to that directive, and from Article 370 of the VAT Directive, read in conjunction with the first paragraph of Article 153 of and Part A of Annex X to that directive, that the EU legislature granted the Member States a right to derogate from the obligation to exempt the supply referred to in Article 26(3) of the Sixth Directive and in Article 309 of the VAT Directive subject only to satisfaction of the condition laid down in Article 28(3)(a) of the Sixth Directive and in Article 370 of the VAT Directive, that is to say, that the national legislation provided for the taxation of that supply before 1 January 1978. In those circumstances, the Court finds that, when exercising the right granted by Article 28(3) of the Sixth Directive and by Article 370 of the VAT Directive, the Member States may choose the legislative technique they consider most appropriate (see, by analogy, judgment of 4 October 2012, PIGI , C‑550/11, EU:C:2012:614 , paragraph 33). Nevertheless, the principle of legal certainty, which is a general principle of EU law, requires that the legislative technique chosen must be characterised by clarity and certainty as regards the legal situations to which it applies (see, to that effect, judgment of 22 February 2018, T ‑ , C‑396/16, EU:C:2018:109 , paragraphs 50 to 53). In the present case, it is clear from the order for reference that the supply of services by travel agents in relation to travel outside the European Union, which was subject to VAT in Belgium from 1 December 1977, continued to be subject to that tax, after the entry into force of the royal decree of 28 December 1999, applicable from 1 January 2000, pursuant to the provisions of the VAT Code, provisions from which it follows implicitly that the supply in question remains subject to VAT since they do not establish a VAT exemption for that supply. There is nothing to suggest that that legislative choice is contrary to Article 28(3) of the Sixth Directive and to Article 370 of the VAT Directive. The retention, after the entry into force of the Sixth Directive and of the VAT Directive, of national legislation which, before 1 January 1978, did not provide for a VAT exemption for the supply referred to in Article 26(3) of the Sixth Directive and in the first paragraph of Article 309 of the VAT Directive, and from which it follows implicitly that the supply in question is subject to VAT, must be regarded as the outcome of the Member State concerned exercising the right to derogate granted to it under Article 28(3) of the Sixth Directive and Article 370 of the VAT Directive. In the light of the foregoing, the answer to the first question is that Article 28(3)(a) and (4) of and Annex E(15) to the Sixth Directive and Article 370 of and Annex X, Part A, point (4), to the VAT Directive must be interpreted as meaning that the derogating regime that they establish does not require a national statutory provision expressly establishing a derogation from the exemption from VAT for the supply of services by travel agents in relation to travel outside the European Union laid down in Article 26(3) of the Sixth Directive and in Article 309 of the VAT Directive. The second question By the second question, the referring court seeks to ascertain, in essence, whether Article 28(3)(a) and (4) of and Annex E(15) to the Sixth Directive and Article 370 of and Annex X, Part A, point (4), to the VAT Directive must be interpreted as meaning that a legislative amendment that took effect after the entry into force of the Sixth Directive, which deletes an express legislative provision under which the supply of services by travel agents in relation to travel outside the European Union was not exempt from VAT and replaces it with provisions from which it follows only implicitly that the supply in question remains taxable, must be found to be legislation that is not identical in its main points to the previous legislation and that is based on a different approach. It is clear from the case-law of the Court of Justice that any national measure adopted after a given date is not, by reason of that fact alone, automatically excluded from the derogating regime laid down in the EU act in question. A provision which is in its main points identical to the previous legislation, or is limited to reducing or eliminating an obstacle, contained in the previous legislation, to the exercise of rights and freedoms established by EU law, will be covered by the derogation. By contrast, legislation that is based on an approach different from that of the previous law and establishes new procedures cannot be treated as legislation existing at the date fixed in the EU act in question (see, to that effect, judgments of 23 April 2009, Puffer , C‑460/07, EU:C:2009:254, paragraphs 85 to 87, and of 20 September 2018, EV , C‑685/16, EU:C:2018:743 , paragraph 75). In the present case, it is clear from the documents submitted to the Court that, from 1 January 1978, the first paragraph of Article 20(2) of the VAT Code established a statutory presumption pursuant to which a travel agent taking part in the supply of transport, accommodation, food or beverages consumed on the premises, entertainment or other services was treated as acting in the name of and on behalf of the traveller, as the latter's agent, save to the extent that the travel agent had itself supplied the services directly using its own means or had acted in the name of and on behalf of the supplier of those services. Nevertheless, the second subparagraph of Article 41(2) of the VAT Code laid down, on the one hand, a VAT exemption for the supply of services abroad by brokers and agents and, on the other, an exception to that exemption in respect of travel agents taking part in the supply of transport, accommodation, food or beverages consumed on the premises, entertainment or other services, unless they were acting in the name of and on behalf of the supplier of the services. Following the legislative amendment that took effect on 1 January 2000, the VAT Code provides that travel agents act in their own name vis-à-vis travellers, rather than as the traveller's agent, where, in their own name, they organise and sell travel facilities that they provide using goods and services supplied to them by others for that purpose. Furthermore, since the first subparagraph of Article 41(2) of the VAT Code concerned only brokers and agents, the second subparagraph of Article 41(2) of that code – which excluded travel agents from the VAT exemption resulting from the statutory presumption according to which the supply of their services was treated as an intermediary activity – was deleted. As stated in the order for reference, the removal of that statutory presumption, from 1 January 2000, has not had the effect that the supply of services by travel agents in relation to travel outside the European Union is no longer subject to VAT, because it follows implicitly from the provisions of the VAT Code that that supply remains subject to VAT, since those provisions do not establish that it is exempt from VAT. It cannot be inferred from that circumstance that, after the entry into force of the royal decree of 28 December 1999, applicable from 1 January 2000, the system for applying VAT to the supply of services by travel agents in relation to travel outside the European Union changed or that it is based on an approach which differs from that of the legislative provisions in force between 1 December 1977 and 31 December 1999. As is apparent from the order for reference and the written observations of TUI Belgium and the Commission, the amendments to the VAT Code that took effect from 1 January 2000 were intended to remove the statutory presumption according to which the supply of services by travel agents was treated as an intermediary activity, and the inclusion of a definition of the concept of 'travel agent' in that code was based on the concept in Article 26(1) of the Sixth Directive (now Article 306(1) of the VAT Directive). The purpose of those amendments was to avoid the risk of double taxation. In that context, as the Belgian Government states in its written observations, the removal of the exception to the VAT exemption for the supply of services by travel agents in relation to travel outside the European Union reflects merely the choice of a legislative technique by the Belgian legislature to avoid retaining a derogation that had become redundant, and has no bearing on the application of VAT to that supply or on the approach taken in the applicable rules. Those amendments gave rise neither to an increase in the number of taxable activities nor to a change in the nature of those activities. In addition, in the context of the amendments to the VAT Code that took effect from 1 January 2000, the Court of Justice has held that a Member State was not in breach of Article 309 of the VAT Directive by not treating the services of travel agents as exempt intermediary activities where those services related to travel outside the European Union, and by imposing VAT on those services, if it had imposed VAT on those services on 1 January 1978 (judgment of 13 March 2014, Jetair and BTWE Travel4you , C‑599/12, EU:C:2014:144 , paragraph 43). Accordingly, it appears that earlier legislation and new legislation, such as the earlier legislation and the new legislation at issue in the main proceedings, achieve results which are, in essence, identical, that is to say, the application of VAT to the supply of services by travel agents in relation to travel outside the European Union; are not based on different approaches; and have not laid down different procedures, matters which it is for the referring court to determine. In the light of the foregoing, the answer to the second question is that Article 28(3)(a) and (4) of and Annex E(15) to the Sixth Directive and Article 370 of and Annex X, Part A, point (4), to the VAT Directive must be interpreted as meaning that a legislative amendment that took effect after the entry into force of the Sixth Directive, which deletes an express legislative provision under which the supply of services by travel agents in relation to travel outside the European Union was not exempt from VAT and replaces it with provisions from which it follows only implicitly that the supply in question remains taxable, does not have to be regarded, by reason of that fact alone, as legislation that is not identical in its main points to the previous legislation and that is based on a different approach. Costs Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable. On those grounds, THE GENERAL COURT (Fifth Chamber, sitting with five Judges) hereby rules: 1. Article 28(3)(a) and (4) of and Annex E(15) to Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes – Common system of value added tax: uniform basis of assessment, and Article 370 of and Annex X, Part A, point (4), to Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as meaning that the derogating regime that they establish does not require a national statutory provision expressly establishing a derogation from the exemption from value added tax (VAT) for the supply of services by travel agents in relation to travel outside the European Union laid down in Article 26(3) of Directive 77/388 and in Article 309 of Directive 2006/112. 2. Article 28(3)(a) and (4) of and Annex E(15) to Directive 77/388 and Article 370 of and Annex X, Part A, point (4), to Directive 2006/112 must be interpreted as meaning that a legislative amendment that took effect after the entry into force of Directive 77/388, which deletes an express legislative provision under which the supply of services by travel agents in relation to travel outside the European Union was not exempt from VAT and replaces it with provisions from which it follows only implicitly that the supply in question remains taxable, does not have to be regarded, by reason of that fact alone, as legislation that is not identical in its main points to the previous legislation and that is based on a different approach. Sampol Pucurull Pynnä Laitenberger Stancu Valasidis Delivered in open court in Luxembourg on 25 March 2026. [Signatures] * Language of the case: Dutch. © European Union The source of this judgment is the Europa web site. 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