The Average Consumer in EU VAT Law – A Study of Conceptual Consistency in the Caselaw of the CJEU

Abstract: The average consumer concept in EU VAT law used by the CJEU to determine whether supplies are similar enough to be subject to the same VAT treatment. It is also used to determine whether a transaction should be seen as a single composite transaction or as consisting of multiple supplies. Due to the heterogenous nature of the transactions taking place within the realm of EU VAT, the concept is hard to exhaustively define. Through a comparison with the average consumer in EU excise duty law and EU trademark law, it can be determined that there is no common average consumer in these areas of EU. While some common attributes of the average consumer can be found in VAT caselaw, the concept is more well-defined in both excise duty caselaw and in trademark law. The use of the concept is, while differing the application by the CJEU, is similarity consistent in each area of law. The average consumer concept in VAT law is subject to circumstances present on the relevant markets in members, meaning that the average consumer is not necessarily the same across the union. This is a key difference to the concept in excise duty law, which is explicity envisioned by the CJEU as a EU-wide consistent concept. While the concept in trademark law is more variable due to circumstances in the relevant member state/s, it is still more concisstently defined than the conecept in VAT law. In order to avoid excessive legal certainty, the CJEU should, when applicable continue to define and develop the average consumer concept in VAT law towards a concept which is less dependent on the characteristics of markets in specific member states. Additional legal certainty in the approach of the CJEU to the concept is in line with the key feature of neutrality in the EU VAT system.