UT/2023/000009 - [2024] UKUT 00162 (TCC)

In rejecting Spectrum’s argument, the FTT considered that both EC v UK and Klinikum could be distinguished from the facts of this case and that, viewed correctly, neither case supported Spectrum’s submissions (FTT [105]). The FTT also noted that EC v UK predated CPP and Levob,where the principles regarding identification of single complex supplies had been set out. Accordingly, in EC v UK there had been no discussion of whether a single supply was being made. The FTT observed that the Advocate General in Klinikum considered that notwithstanding EC v UK it was still possible to have a single supply analysis (describing Levob and CPP as a variant of the physically and economically indissociable test in EC v UK) (FTT [106]).

The FTT also noted that in Klinikum (as made clear by [48]-[49] of the Advocate General’s opinion) there was more than one supply. The fact separate supplies were being made by separate persons precluded the two from constituting a single supply (they could be “closely related” but that only applied to exemption b) cases not exemption c)). The FTT also considered the CJEU had approved the Advocate General’s analysis that there was more than one supply contrasting the separate supplies in Klinikum with the composite supply, in this case, of medical care provision and drugs and contraceptives (FTT [111]).