I have become a bit of a fan of Advocate General Szpunar. Not because he definitely makes the right choices about VAT when producing his opinions for the Court of Justice, but because of the sense of style and intellectual ease he exhibits. He is comfortable in his own skin, and does not look over his shoulder. And this is demonstrated perfectly by his latest opinion in the case of English Bridge Union (Case C-90/16).
His opening paragraph is as follows: ‘Consider for example the proceedings that we call “games”. I mean board-games, card-games, ball-games, Olympic Games, and so on. What is common to them all? Don’t say: “There must be something common, or they would not be called ‘games’” – but look and see whether there is anything common to all. For if you look at them, you will not see something that is common to all, but similarities, relationships, and a whole series of them at that. To repeat: don’t think, but look!’
And this exhortation is a quote from Wittgenstein, the famous philosopher (who despite the Germanic name, lived and worked in England). This sets the scene for an analysis where all preconceptions are to be cast aside in the pursuit of a truth that might otherwise be hidden.
The question is whether the ‘game’ of duplicate contract bridge may also be called a ‘sport’, with the potential consequence that a supply of involvement in it could be exempt under VATA 1994 Sch 9 Group 10. The UK says it is not ‘sport’ since the latter must have an emphasis on physical achievement, which bridge does not, and that the reference in the VAT Directive – article 132(m) – to ‘sport or physical education’ implies that ‘sport’ must include a physical element.
Applying his Wittgenstein scalpel, Szpunar rejects that argument, since the two categories are presented as mere alternative reasons for exemption, and there is nothing that states that one category conditions interpretation of the other in any particular way. They can be linked by reference to skill, or competitive nature, and not necessarily by a physical aspect.
He then proceeds to answer the question from first principles, looking at dictionary definitions of ‘sport’ from several countries, at what various international boards have included as relevant sports (of which the Olympic activities are treated as highly suggestive, and which he finds includes non-physical endeavours), and at the history of the word (which he relishes reminding us meant ‘leisure’ back in the days of Chaucer). The conclusion is a nuanced picture, but he is not convinced that ‘sport’ imports a requirement for physical skill. He deduces from all of the above that mental skill and achievement can denote a ‘sport’ without the physical element. He also seems to say that the mere fact that we Brits do not currently interpret ‘sport’ in such a light, nor tend to view bridge as a sport, is irrelevant to the point, since there must be a consistent EU treatment.
And after such a colourful and exuberant analysis, nobody feels like disagreeing. But, we now wait to see whether the CJEU is less liberal in its intellectual processes. Sadly, it may be. Perhaps we can dream for a while.
But it would be a strange outcome, I think, if the court’s decision meant that bridge could be a sport, whereas they decided only a few days ago, in British Film Institute (Case C-592/15), that the UK was entitled to treat cinema as not being ‘culture’.
I have become a bit of a fan of Advocate General Szpunar. Not because he definitely makes the right choices about VAT when producing his opinions for the Court of Justice, but because of the sense of style and intellectual ease he exhibits. He is comfortable in his own skin, and does not look over his shoulder. And this is demonstrated perfectly by his latest opinion in the case of English Bridge Union (Case C-90/16).
His opening paragraph is as follows: ‘Consider for example the proceedings that we call “games”. I mean board-games, card-games, ball-games, Olympic Games, and so on. What is common to them all? Don’t say: “There must be something common, or they would not be called ‘games’” – but look and see whether there is anything common to all. For if you look at them, you will not see something that is common to all, but similarities, relationships, and a whole series of them at that. To repeat: don’t think, but look!’
And this exhortation is a quote from Wittgenstein, the famous philosopher (who despite the Germanic name, lived and worked in England). This sets the scene for an analysis where all preconceptions are to be cast aside in the pursuit of a truth that might otherwise be hidden.
The question is whether the ‘game’ of duplicate contract bridge may also be called a ‘sport’, with the potential consequence that a supply of involvement in it could be exempt under VATA 1994 Sch 9 Group 10. The UK says it is not ‘sport’ since the latter must have an emphasis on physical achievement, which bridge does not, and that the reference in the VAT Directive – article 132(m) – to ‘sport or physical education’ implies that ‘sport’ must include a physical element.
Applying his Wittgenstein scalpel, Szpunar rejects that argument, since the two categories are presented as mere alternative reasons for exemption, and there is nothing that states that one category conditions interpretation of the other in any particular way. They can be linked by reference to skill, or competitive nature, and not necessarily by a physical aspect.
He then proceeds to answer the question from first principles, looking at dictionary definitions of ‘sport’ from several countries, at what various international boards have included as relevant sports (of which the Olympic activities are treated as highly suggestive, and which he finds includes non-physical endeavours), and at the history of the word (which he relishes reminding us meant ‘leisure’ back in the days of Chaucer). The conclusion is a nuanced picture, but he is not convinced that ‘sport’ imports a requirement for physical skill. He deduces from all of the above that mental skill and achievement can denote a ‘sport’ without the physical element. He also seems to say that the mere fact that we Brits do not currently interpret ‘sport’ in such a light, nor tend to view bridge as a sport, is irrelevant to the point, since there must be a consistent EU treatment.
And after such a colourful and exuberant analysis, nobody feels like disagreeing. But, we now wait to see whether the CJEU is less liberal in its intellectual processes. Sadly, it may be. Perhaps we can dream for a while.
But it would be a strange outcome, I think, if the court’s decision meant that bridge could be a sport, whereas they decided only a few days ago, in British Film Institute (Case C-592/15), that the UK was entitled to treat cinema as not being ‘culture’.
