Ambulanter Pflegedienst Kügler GmbH v Finanzamt für Körperschaften I in Berlin.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2002:473
• Date: 10 September 2002
• Celex Number: 62000CJ0141
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Docket Number: C-141/00

Avis juridique important

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62000J0141

Judgment of the Court (Sixth Chamber) of 10 September 2002. - Ambulanter Pflegedienst Kügler GmbH v Finanzamt für Körperschaften I in Berlin. - Reference for a preliminary ruling: Bundesfinanzhof - Germany. - Article 13(A)(1)(c) and (g) of the Sixth Directive (77/388/EEC) - Exemption of care provided by capital companies - Services closely linked to welfare and social security work supplied by organisations, not being bodies governed by public law, recognised as charitable by the Member State concerned - Direct effect. - Case C-141/00.

European Court reports 2002 Page I-06833

Summary
Parties
Grounds
Decision on costs
Operative part

Keywords

1. Tax provisions - Harmonisation of laws - Turnover taxes - Common system of value added tax - Exemptions provided for by the Sixth Directive - Exemption for medical care provided in the exercise of the medical and paramedical professions - Legal form of the taxable person - Not relevant

(Council Directive 77/388, Art. 13(A)(1)(c))

2. Tax provisions - Harmonisation of laws - Turnover taxes - Common system of value added tax - Exemptions provided for by the Sixth Directive - Exemption for medical care provided in the exercise of the medical and paramedical professions - Place where the services are supplied and their type - Services of a therapeutic nature provided outside a hospital environment

(Council Directive 77/388, Art. 13(A)(1)(c))

3. Tax provisions - Harmonisation of laws - Turnover taxes - Common system of value added tax - Exemptions provided for by the Sixth Directive - Exemption of services linked to welfare and social security supplied by bodies governed by public law or other organisations recognised as charitable - Scope - Provision of general care and domestic help - Included

(Council Directive 77/388, Art. 13(A)(1)(g))

4. Tax provisions - Harmonisation of laws - Turnover taxes - Common system of value added tax - Exemptions provided for by the Sixth Directive - Exemption of services linked to welfare and social security supplied by bodies governed by public law or other organisations recognised as charitable - Direct effect - Limits - Discretion of national authorities with regard to the concept of organisations recognised as charitable - Review by national courts

(Council Directive 77/388, Art. 13(A)(1)(g))

Summary

$$1. The exemption from value added tax envisaged in Article 13(A)(1)(c) of the Sixth Directive (77/388) in respect of the provision of medical care in the exercise of the medical and paramedical professions is not dependent on the legal form of the taxable person supplying the medical or paramedical services referred to in that provision.

The principle of fiscal neutrality, inherent in the common system of value added tax, in compliance with which the exemptions provided for in Article 13 of the Sixth Directive (77/388) must be applied, precludes, inter alia, economic operators carrying on the same activities from being treated differently as far as the levying of the tax. That principle would therefore be disregarded if the possibility of relying on the aforementioned exemption were dependent on the legal form in which the taxable person carries on his activity.

( see paras 29-31, operative part 1 )

2. The exemption from value added tax envisaged in Article 13(A)(1)(c) of the Sixth Directive (77/388) in respect of the provision of medical care in the exercise of the medical and paramedical professions applies to the provision of care of a therapeutic nature by a capital company running an out-patient service under which care, including home care, is provided by qualified nursing staff, to the exclusion of the provision of general care and domestic help.

As regards the place where the services must be supplied, the aforementioned provision is designed to exempt medical services provided outside a hospital environment, both at the private address of the person providing the care and at the patient's home or at any other place. As regards the type of care falling within the provision of medical care, that concept does not lend itself to an interpretation which includes medical interventions carried out for a purpose other than that of diagnosing, treating and, in so far as possible, curing diseases or health disorders.

( see paras 35-38, 41, operative part 2 )

3. The provision of general care and domestic help by an out-patient care service to persons in a state of physical or economic dependence amounts to the supply of services closely linked to welfare and social security work within the meaning of Article 13(A)(1)(g) of the Sixth Directive (77/388).

( see para. 61, operative part 3(a) )

4. The exemption in respect of the supply of services and of goods closely linked to welfare and social security work by bodies governed by public law or by other organisations recognised as charitable by the Member State concerned, provided for in Article 13(A)(1)(g) of the Sixth Directive (77/388), may be relied upon by a taxable person before national courts in order to oppose national rules incompatible with that provision.

However, as regards the question whether the taxable person is in fact an organisation recognised as charitable by the Member State concerned, the aforementioned provision grants the Member States a discretion for the purpose of according certain organisations such recognition and persons cannot rely on the provision in order to acquire that status as against the Member State concerned as long as the latter observes the limits of its discretion.

It is for the national court to examine whether the competent authorities have observed those limits while applying Community principles, in particular the principle of equal treatment, and thus to establish, in the light of all relevant factors, whether the taxable person is an organisation recognised as charitable within the meaning of the provision in question.

( see paras 54-56, 61, operative part 3(b) )

Parties

In Case C-141/00,

REFERENCE to the Court under Article 234 EC by the Bundesfinanzhof (Germany) for a preliminary ruling in the proceedings pending before that court between

Ambulanter Pflegedienst Kügler GmbH

and

Finanzamt für Körperschaften I in Berlin,

on the interpretation of Article 13(A)(1)(c) and (g) of the Sixth Council Directive (77/388/EEC) of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes - Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1),

THE COURT (Sixth Chamber),

composed of: F. Macken (Rapporteur), President of the Chamber, C. Gulmann, J.-P. Puissochet, R. Schintgen and J.N. Cunha Rodrigues, Judges,

Advocate General: A. Tizzano,

Registrar: H. von Holstein, Deputy Registrar,

after considering the written observations submitted on behalf of:

- Ambulanter Pflegedienst Kügler GmbH, by U. Behr, Rechtsanwalt,

- the Finanzamt für Körperschaften I in Berlin, by W. Lang, acting as Agent,

- the German Government, by W.-D. Plessing and T. Jürgensen, acting as Agents,

- the Swedish Government, by A. Kruse, acting as Agent,

- the Commission of the European Communities, by E. Traversa and K. Gross, acting as Agents,

having regard to the Report for the Hearing,

after hearing the oral observations of Ambulanter Pflegedienst Kügler GmbH, represented by U. Behr; the Finanzamt für Körperschaften I in Berlin, represented by H.-J. Klees, acting as Agent; the German Government, represented by W.-D. Plessing; and the Commission, represented by K. Gross, at the hearing on 28 June 2001,

after hearing the Opinion of the Advocate General at the sitting on 27 September 2001,

gives the following

Judgment

Grounds

1 By order of 3 February 2000, received at the Court on 14 April 2000, the Bundesfinanzhof (Federal Finance Court) referred to the Court for a preliminary ruling under Article 234 EC three questions on the interpretation of Article 13(A)(1)(c) and (g) of the Sixth Council Directive (77/388/EEC) of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes - Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1; the Sixth Directive).

2 The questions were raised in proceedings between Ambulanter Pflegedienst Kügler GmbH (Kügler) and the Finanzamt für Körperschaften I in Berlin (Tax Office for Corporate Bodies I in Berlin; the Finanzamt) concerning the charging of value added tax (VAT) at a reduced rate on out-patient care provided by Kügler from 1988 to 1990 when, according to...