But, if you ask me, the good old British Banger is not going the way of the Frankfurter. The frenzy is misplaced for the following prosaic reasons.

 

The UK’s rules relating to the zero rate for food are special to the UK and do not conform to the rules in Germany for the reduced rate. Those rules in any case present choices to member states. One such is to distinguish between “food” (goods) and “catering” (café type services). Manfred Bog sold his sausages from a portable kiosk, around which he sometimes arrayed some tables and chairs. The ECJ said that this did not amount to catering services, and the product remained “food”. By dint of that definition, the German lower rate applied.

 

However, in our legislation, the definition of “catering” (which is standard rated) is effectively a sub-set of “food”, and is specifically treated as an exception to the zero rate. What’s more, “catering” is given two specific meanings. One of these incorporates, within that definition, food which is sold hot. Therefore there is no boundary definition to determine between catering “services” and hot takeaway food, because the legislation specifically includes both as being exceptions to the zero rated supplies. And, the UK zero rate is not a parallel to the reduced rate within the VAT Directive. It is a hang-over from the 1970s and an exception to the EU VAT rules. As such, the ECJ is not in a position to issue a rule which creates a wider zero rated category as such. As it happens, the Chancellor could decide, in the Budget, to put such hot takeaway food onto the reduced rate of 5%, but that decision would have nothing to do with this case. Catering services have long been included in a list of supplies to which member states may apply the reduced rate. 

 

The Manfred Bog decision could have an impact where cold takeaway food is concerned, in making it easier to argue that ephemeral services such as tables and chairs set out alongside portable vending stores are insufficient to render the cold food supply a provision of “catering”. In any case, HMRC’s policy on that particular “catering” dividing line is not all that clear and it seems likely that there is enough ammunition in UK VAT case precedence to support an argument that the Bog situation is not a catering service in any case. But this would do nothing to displace the second specific definition of catering which is special to the UK, namely that hot food is included in that definition.

 

So, if you like your sausage hot, you are probably going to be disappointed.