I have recently take a lunch in a pub (in France) and when i have buy a sandwich there was a 15% tax because i choose the "on the spot" formula. This tax wasn't indicated anywhere in the pub. Is this legal or not ?
From a consumer protection point of view, it is not legal:
My first thought was that there is a similar issue under French tax law as under German tax law when distinguishing the taxation of food sold, and the taxation of food provided under a contract that has elements of a sales contract as well as a service contract (i.e. eating in a restaurant). Where food is sold to take away, it is taxed at 7% value added tax (VAT), while food served in a restaurant is taxed at 19% VAT.
However, the additional 15% are not a tax, especially not a higher rate of VAT. As pointed out VAT often has different tax rates for specific goods and services to meet certain policy goals. Some or all food often attracts a lower tax rate to decrease the economic burden on the poorer demographic.
France has four VAT tax rates:
- super-reduced rate: 2,2%
- reduced rate: 5,5% or 10%
- standard rate: 20%
While foodstuffs can attract all tax rates, restaurant and catering services only attract the reduced rate at either 5,5% or 10%. But the 5,5% rate only applies to school cantines. All other restaurant services attract the 10% rate, with the exception of alcoholic beverages, which are liable to 20%.
Consequently, the additional 15% are not a tax, but a 'service fee' for additional services rendered, such as plates, tables, glasses etc.
If it is true that there was no display in the pub that mentioned this service fee, this might have violated provision L113-3 of French Consumer Code (Code de consommation), which states:
Article L113-3 Tout vendeur de produit ou tout prestataire de services doit, par voie de marquage, d'étiquetage, d'affichage ou par tout autre procédé approprié, informer le consommateur sur les prix et les conditions particulières de la vente et de l'exécution des services, selon des modalités fixées par arrêtés du ministre chargé de l'économie, après consultation du Conseil national de la consommation.
From this follows that the restaurant as service provider must inform the consumer about the price.
A violation in contravention of said law allows for the imposition of an administrative fine of up to 15000,- €:
Tout manquement à l'article L. 113-3 et aux arrêtés pris pour son application et à l'article L. 113-3-1 est passible d'une amende administrative dont le montant ne peut excéder 3 000 € pour une personne physique et 15 000 € pour une personne morale. L'amende est prononcée dans les conditions prévues à l'article L. 141-1-2.
However, this does not answer whether a customer might be able to reclaim the money where the display of the price was not made in accordance of said law.
Furthermore, the question remains whether the service fee was incorporated into the service contract as a standard term. Unfortunately, I cannot answer that question. Another issue could be that the fee was nonetheless paid and this could be construed as a waiver.