Opinion of the Advocate General — ECLI:EU:C:2012:493
Date: 2012-07-19
Language of the case: German
Subject matter: Taxation;Value added tax
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary — Judgment of the Court (Second Chamber) of 15 November 2012 1. Harmonisation of fiscal legislation — Common system of value added tax — Exemptions provided for in the Sixth Directive — Exemption of services closely linked to welfare and social security work supplied by bodies governed by public law or organisations recognised as charitable — Direct effect (Council Directive 77/388, Art. 13A(1)(g)) 2. Harmonisation of fiscal legislation — Common system of value added tax — Objectives and scheme — Principle of fiscal neutrality — Concept — Neutrality of taxation and equal treatment — Different concepts (Council Directive 77/388) 3. Harmonisation of fiscal legislation — Common system of value added tax — Exemptions provided for in the Sixth Directive — Interpretation in the light of the principle of fiscal neutrality — Limits (Council Directive 77/388, Art. 13) 4. Harmonisation of fiscal legislation — Common system of value added tax — Exemptions provided for in the Sixth Directive — Exemption of services closely linked to welfare and social security work supplied by bodies governed by public law or organisations recognised as charitable — Organisations recognised as charitable — Criteria — Medical and pharmaceutical costs borne in at least two thirds of cases by the statutory social security or social welfare authorities in the preceding calendar year — Condition not capable of ensuring equal treatment of organisations other than bodies governed by public law — Not permissible (Council Directive 77/388, Art. 13A(1)(g) and 2(b)) 1. See the text of the decision. (see para. 32) 2. See the text of the decision. (see paras 46-48) 3. See the text of the decision. (see paras 50, 51) 4. Article 13A(1)(g) of Sixth Council Directive 77/3887 on the harmonisation of the laws of the Member States relating to turnover taxes, interpreted in the light of the principle of fiscal neutrality, precludes the VAT exemption for out-patient services supplied by commercial service-providers being made subject to a condition by virtue of which the costs relating to those services must, during the preceding calendar year, have been borne wholly or partly by the statutory social security or social welfare authorities in at least two thirds of cases, where that condition is not capable of ensuring equal treatment in relation to the recognition, for the purposes of that provision, of the ‘charitable’ nature of organisations other than bodies governed by public law. The national court, in the light of all the specific factors of the dispute before it, must also take into account the requirements of Article 13A(2)(b) of the Sixth Directive. Whatever the interpretation given to the expression ‘closely linked’ under Article 13A(1)(g) of the Sixth Directive, the first indent of Article 13A(2)(b) thereof in any event makes exemption conditional on the supply of goods or services concerned being essential to the transactions exempted. Furthermore, under the second indent of Article 13A(2)(b) of the Sixth Directive, the supply of goods or services is excluded from the exemption under Article 13A(1)(g) if its basic purpose is to obtain additional income for the organisation through transactions which are in direct competition with those of commercial enterprises liable for VAT. (see paras 60-63, operative part)