Margarande Unterpertinger v Pensionsversicherungsanstalt der Arbeiter.

• Jurisdiction: European Union
• Celex Number: 62001CJ0212
• ECLI: ECLI:EU:C:2003:625
• Date: 20 November 2003
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Docket Number: C-212/01

Case C-212/01


Margarete Unterpertinger
v
Pensionsversicherungsanstalt der Arbeiter


(Reference for a preliminary rulingfrom the Landesgericht Innsbruck (Austria))

«(Sixth VAT Directive – Exemption for medical care provided in the exercise of the medical and paramedical professions – Expert medical report)»

Opinion of Advocate General Stix-Hackl delivered on 30 January 2003

Judgment of the Court (Fifth Chamber), 20 November 2003

Summary of the Judgment

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 – Scope – Expert medical report in connection with the grant of a disability pension – Excluded

( Art. 13A(1)(c) of Council Directive 77/388 ) Article 13A(1)(c) of Sixth Directive 77/388, relating to the exemption from value added tax of certain medical services, does not exempt all the services which may be effected in the exercise of the medical and paramedical professions, but only provision of medical care.In that regard, it is the purpose of a medical service which determines whether it should be exempt from VAT. Therefore, if the context in which such a service is effected enables it to be established that its principal purpose is not the protection, including the maintenance or restoration, of health but rather the provision of advice required prior to taking a decision with legal consequences, the exemption does not apply to the service.Thus, Article 13A(1)(c) is to be interpreted as meaning that the exemption from value added tax under that provision does not apply to the services of a doctor consisting of making an expert report on a person's state of health in order to support or exclude a claim for payment of a disability pension. The fact that the medical expert was instructed by a court or pension insurance institution is irrelevant in that respect.see paras 35, 42, 45, operative part

JUDGMENT OF THE COURT (Fifth Chamber)
20 November 2003 (1)

((Sixth VAT Directive – Exemption for medical care provided in the exercise of the medical and paramedical professions – Expert medical report))

In Case C-212/01,

REFERENCE to the Court under Article 234 EC by the Landesgericht Innsbruck (Austria) for a preliminary ruling in the proceedings pending before that court between Margarete Unterpertinger

and

Pensionsversicherungsanstalt der Arbeiter, on the interpretation of Article 13A(1)(c) of 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) and the Court's case-law resulting, in particular, from Case C-384/98 D. v W. [2000] ECR I-6795,

THE COURT (Fifth Chamber),,

composed of: A. Rosas (Rapporteur), acting for the President of the Fifth Chamber, D.A.O. Edward and A. La Pergola, Judges, Advocate General: C. Stix-Hackl,
Registrar: M.-F. Contet, Principal Administrator,

after considering the written observations submitted on behalf of:

─

the Austrian Government, by C. Pesendorfer, acting as Agent,

─

the United Kingdom Government, by J.E. Collins, acting as Agent, and by N. Paines QC,

─

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

having regard to the Report for the Hearing,

after hearing the oral observations of the United Kingdom Government and of the Commission at the hearing on 20 November 2002,

after hearing the Opinion of the Advocate General at the sitting on 30 January 2003,

gives the following

Judgment

1

By order of 9 May 2001, received at the Court on 23 May 2001, the Landesgericht Innsbruck (Regional Court, Innsbruck) referred to the Court for a preliminary ruling under Article 234 EC two questions on the interpretation of Article 13A(1)(c) of 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, hereinafter the Sixth Directive), and the Court's case-law resulting, in particular, from Case C-384/98 D. v W. [2000] ECR I-6795.

2

Those questions were raised in the course of a dispute between, initially, Ms Unterpertinger and the Pensionsversicherungsanstalt der Arbeiter (Workers' Pension Insurance Institution) concerning the refusal to pay a disability pension. Following Ms Unterpertinger's death, the only remaining issue in the main proceedings concerns the costs, in particular the question whether value added tax (hereinafter VAT) is payable in respect of the services of a medical expert appointed by the referring court.

Legal background

Community law

3

Under Article 2(1) of the Sixth Directive VAT is chargeable on the supply of goods or services effected for consideration within the territory of the country by a taxable person acting as such.

4

Article 4 of the Sixth Directive provides:

1.

Taxable person shall mean any person who independently carries out in any place any economic activity specified in paragraph 2, whatever the purpose or results of that activity.

2.

The economic activities referred to in paragraph 1 shall comprise all activities of producers, traders and persons supplying services including mining and agricultural activities and activities of the professions. The exploitation of tangible or intangible property for the purpose of obtaining income therefrom on a continuing basis shall also be considered an economic activity. ...

5

Article 13A(1) provides:

1.

Without prejudice to other Community provisions, Member States shall exempt the following under conditions which they shall lay down for the purpose of ensuring the correct and straightforward application of such exemptions and of preventing any possible evasion, avoidance or abuse: ...

(b)

hospital and medical care and closely related activities undertaken by bodies governed by public law or, under social conditions comparable to those applicable to bodies governed by public law, by hospitals, centres for medical treatment or diagnosis and other duly recognised establishments of a similar nature;

(c)

the provision of medical care in the exercise of the medical and paramedical professions as defined by the Member State concerned; ....

6

In D. v W. , cited above, the Court held that Article 13A(1)(c) of the Sixth Directive is to be interpreted as meaning that it does not apply to medical services consisting, not in the provision of care to persons by diagnosing and treating a disease or any other health disorder, but in establishing the genetic affinity of individuals through biological tests. National legislation

7

Paragraphs 1(1)(1) and 6(1)(19) of the Umsatzsteuergesetz (Law on Turnover Taxes) 1994 (BGBl. No 1994/663, hereinafter the UStG 1994), are worded as follows: Paragraph 1Taxable transactions

1.

Turnover tax is chargeable on the following transactions:

(1)

Deliveries and other supplies which an operator, in the course of his business, makes for consideration within the country. The charge to tax is not excluded because the transaction is effected on the basis of a legal or administrative act or because it is to be regarded as effected under a legal provision; ...Paragraph 6Tax exemptions

1.

The following turnover falling within Paragraph 1(1)(1) and (2), shall be exempt from tax: ...19. Turnover from activity as a doctor, dentist, psychotherapist, midwife or self-employed supplier ...; services supplied to their...