# C_2010221EN.01000301.xml

| 14.8.2010 | EN | Official Journal of the European Union | C 221/3 |
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14.8.2010

EN

Official Journal of the European Union

C 221/3

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Judgment of the Court (Third Chamber) of 10 June 2010 (Reference for a preliminary ruling from the Østre Landsret — Denmark) — CopyGene A/S v Skatteministeriet

(Case C-262/08) (1)

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(Sixth VAT Directive - Exemptions - Article 13A(1)(b) - Hospital and medical care - Closely related activities - Duly recognised establishments of a nature similar to hospitals or centres for medical treatment or diagnosis - Private stem cell bank - Services of collection, transportation, analysis and storage of umbilical cord blood of newborn children - Possible autologous or allogeneic use of stem cells)

2010/C 221/04

Language of the case: Danish

Referring court

Referring court

Østre Landsret

Parties to the main proceedings

Parties to the main proceedings

Applicant: CopyGene A/S

Applicant:

Defendant: Skatteministeriet

Defendant:

Re:

Re:

Reference for a preliminary ruling — Østre Landsret — Article 13A(1)(b) 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), now Article 132(1)(b) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1) — Exemption for hospital and medical care and closely related activities — Services consisting in the collection, transportation, analysis and storage of umbilical cord blood from newborn children with a view to autologous use of stem cells, potentially closely related to possible future hospital care, supplied by a private stem cell bank

Operative part of the judgment

Operative part of the judgment

| 1. | The concept of activities ‘closely related’ to ‘hospital and medical care’ within the meaning of Article 13A(1)(b) 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 is to be interpreted as meaning that it does not cover activities such as those at issue in the main proceedings consisting in the collection, transportation and analysis of umbilical cord blood and the storage of stem cells contained in it, where the medical care provided in a hospital environment to which those activities are merely potentially related has not been performed, commenced or yet envisaged; |
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1.

The concept of activities ‘closely related’ to ‘hospital and medical care’ within the meaning of Article 13A(1)(b) 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 is to be interpreted as meaning that it does not cover activities such as those at issue in the main proceedings consisting in the collection, transportation and analysis of umbilical cord blood and the storage of stem cells contained in it, where the medical care provided in a hospital environment to which those activities are merely potentially related has not been performed, commenced or yet envisaged;

| 2. | If the services of stem cell banks such as those at issue in the main proceedings are performed by professional medical personnel, where such stem cell banks, although authorised by the competent health authorities of a Member State, within the framework of Directive 2004/23/EC of the European Parliament and of the Council of 31 March 2004 on setting standards of quality and safety for the donation, procurement, testing, processing, preservation, storage and distribution of human tissue and cells, to handle human tissue and cells, do not receive any support from the public social security scheme and where the payment for those services is not covered by that scheme, Article 13A(1)(b) of Sixth Directive 77/388 does not preclude the national authorities from deciding that taxable persons such as CopyGene A/S are not ‘other duly recognised establishments of a similar nature’ to ‘hospitals [and] centres for medical care or diagnosis’ within the meaning of Article 13A(1)(b) of Sixth Directive 77/388. However, neither can that provision be interpreted as requiring, as such, the competent authorities to refuse to treat a private stem cell bank as an establishment ‘duly recognised’ for the purposes of the exemption in question. To the extent that it is necessary, it is for the referring court to determine whether the refusal of recognition for the purposes of the exemption provided for in Article 13A(1)(b) of Sixth Directive 77/388 complies with European Union law and, in particular, with the principle of fiscal neutrality. |
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2.

If the services of stem cell banks such as those at issue in the main proceedings are performed by professional medical personnel, where such stem cell banks, although authorised by the competent health authorities of a Member State, within the framework of Directive 2004/23/EC of the European Parliament and of the Council of 31 March 2004 on setting standards of quality and safety for the donation, procurement, testing, processing, preservation, storage and distribution of human tissue and cells, to handle human tissue and cells, do not receive any support from the public social security scheme and where the payment for those services is not covered by that scheme, Article 13A(1)(b) of Sixth Directive 77/388 does not preclude the national authorities from deciding that taxable persons such as CopyGene A/S are not ‘other duly recognised establishments of a similar nature’ to ‘hospitals [and] centres for medical care or diagnosis’ within the meaning of Article 13A(1)(b) of Sixth Directive 77/388. However, neither can that provision be interpreted as requiring, as such, the competent authorities to refuse to treat a private stem cell bank as an establishment ‘duly recognised’ for the purposes of the exemption in question. To the extent that it is necessary, it is for the referring court to determine whether the refusal of recognition for the purposes of the exemption provided for in Article 13A(1)(b) of Sixth Directive 77/388 complies with European Union law and, in particular, with the principle of fiscal neutrality.

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(1)  OJ C 209, 15.08.2008.

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