(Reference for a preliminary ruling– Value added tax (VAT)– Directive 2006/112

32By its second question, the referring court asks, in essence, whether Article122 of the VAT Directive must be interpreted as meaning that a Member State which, in applying that provision, establishes a reduced rate of VAT for supplies of wood for use as firewood, may limit its scope, in accordance with Article98(3) of that directive, with reference to the CN.

33It must be borne in mind that, as regards the categories of supplies of goods listed in AnnexIII to the VAT Directive, which may be subject to a reduced rate of VAT under Article98(1) and (2) of that directive, paragraph3 of that article expressly allows Member States to establish those categories more precisely with reference to the CN.

34By contrast, the same possibility cannot be inferred from the actual wording of Article122 of the VAT Directive, which merely states that Member States may apply a reduced rate, inter alia, to the supply of wood for use as firewood, until such time as the definitive arrangements have been adopted.

35However, it must be pointed out, first, that, as stated in paragraph30 of this judgment, Article122 of the VAT Directive is a derogating provision and must, consequently, be interpreted strictly. Accordingly, it is not open to Member States to grant the benefit of a reduced rate to supplies of wood other than the supply of wood for use as firewood pursuant to that provision.

36Second, since Article122 of the VAT Directive gives Member States the option, during a transitional period, to apply a reduced rate to supplies of wood for use as firewood, those States may waive the application of such a rate to those supplies and choose to apply to them the standard rate provided for in Article96 of that directive. Such an option also includes the possibility of applying a reduced rate to only some supplies of wood for use as firewood, provided that that option is exercised within the strict limits of the derogation, as noted in the preceding paragraph.

37As is apparent from the Court’s settled case-law concerning Article98 of the VAT Directive (judgment of 27June 2019, Belgisch Syndicaat van Chiropraxie and Others, C‑597/17, EU:C:2019:544, paragraph44), it should be noted that, in Article122 of that directive, the EU legislature has merely provided Member States the option to apply, by way of derogation and on a temporary basis, a reduced rate of VAT to supplies of, inter alia, wood for use as firewood. Accordingly, Member States have the possibility of reserving the benefit of that reduced rate to only a part of those supplies.

38Thus, it is for Member States aiming to make limited and therefore selective use of the option granted to them by Article122 of the VAT Directive to establish by any means, in their national law, precisely the supplies of wood for use as firewood to which they choose to grant the benefit of a reduced rate. No provision of EU law prohibits them from having recourse to an instrument of EU law to that end and, in particular, from referring to the CN, even though Article122, unlike Article98 of that directive, does not expressly make provision for that.

39However, the option arising from Article122 of the VAT Directive to reserve the benefit of a reduced rate to only some supplies of wood for use as firewood is subject to compliance with the principle of fiscal neutrality. As is apparent from settled case-law, it is permissible for the Member States to determine more precisely the categories of supplies of goods or services to which that directive allows them to apply a reduced rate, subject to compliance with the principle of fiscal neutrality inherent in the common system of VAT (judgments of 22April 2021, Dyrektor Izby Administracji Skarbowej w Katowicach, C‑703/19, EU:C:2021:314, paragraph38, and of 9September 2021, Phantasialand, C‑406/20, EU:C:2021:720, paragraph25 and the case-law cited).

40In the light of the foregoing considerations, the answer to the second question is that Article122 of the VAT Directive must be interpreted as meaning that a Member State which, in applying that article, establishes a reduced rate of VAT for supplies of wood for use as firewood, may limit its scope as regards some categories of supplies of wood for use as firewood with reference to the CN, subject to compliance with the principle of fiscal neutrality.

The third question

41By its third question, the referring court asks, in essence, whether the principle of fiscal neutrality must be interpreted as precluding the supply of wood chips from being excluded from the benefit of the reduced rate applicable to the supply of other types of wood for use as firewood.

42As has been set out in paragraph40 of this judgment, where a Member State chooses to apply selectively the reduced rate of VAT to supplies of goods or services for which the VAT Directive allows the application of such a rate, that Member State must comply with the principle of fiscal neutrality.

43The principle of fiscal neutrality precludes treating similar goods or supplies of services, which are thus in competition with each other, differently for VAT purposes (judgment of 9September 2021, Phantasialand, C‑406/20, EU:C:2021:720, paragraph37 and the case-law cited).

44According to settled case-law, in order to determine whether goods or services are similar, account must primarily be taken of the point of view of a typical consumer. Goods or services are similar where they have similar characteristics and meet the same needs from the point of view of consumers, the test being whether their use is comparable, and where the differences between them do not have a significant influence on the decision of the average consumer to use one or the other of those goods or services (judgment of 9September 2021, Phantasialand, C‑406/20, EU:C:2021:720, paragraph38 and the case-law cited).

45In other words, it is necessary to determine whether the goods and services at issue are interchangeable from the point of view of an average consumer. If that is the case, the application of different VAT rates might affect the consumer’s choice which, in turn, would indicate an infringement of the principle of fiscal neutrality (judgment of 9September 2021, Phantasialand, C‑406/20, EU:C:2021:720, paragraph39 and the case-law cited).

46It is therefore for the referring court to carry out a specific examination in order to determine whether wood chips are interchangeable with other types of wood for use as firewood from the point of view of an average consumer.

47Consequently, the answer to the third question is that the principle of fiscal neutrality must be interpreted as not precluding national law from excluding from the benefit of the reduced rate of VAT the supply of wood chips, even though it grants that benefit to supplies of other types of wood for use as firewood, subject to wood chips not being interchangeable, from the point of view of the average consumer, with other types of wood for use as firewood, which it is for the referring court to ascertain.