Opinion of the Advocate General — ECLI:EU:C:2006:155
Date: 2006-03-07
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Taxation;Value added tax
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the Judgment Tax provisions – Harmonisation of laws – Turnover taxes – Common system of value added tax – Exemptions provided for in the Sixth Directive (Council Directive 77/388, Art. 13A(1)(b) and 2(a)) Article 13A(1)(b) of Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes is to be interpreted as meaning that medical tests which have as their purpose the observation and examination of patients for prophylactic purposes, carried out by a laboratory governed by private law outside a centre for treatment on prescription from general practitioners, may come within the exemption provided for by that provision as medical care provided by another duly recognised establishment of a similar nature within the meaning of that provision. Medical services effected for the purpose of protecting, including maintaining or restoring, human health may benefit from the exemption under that provision. Moreover, medical tests which are prescribed by general practitioners as part of the care they provide may contribute towards maintaining human health because, like any medical service effected for prophylactic purposes, they allow for the observation and examination of patients before it becomes necessary to diagnose, care for or heal a potential illness. Article 13A(1)(b) and (2)(a) of the Sixth Directive does not preclude national legislation which makes the exemption of such medical tests subject to conditions which, first, do not apply to the exemption of care provided by the general practitioners who prescribed them and, second, are different from those applicable to closely related activities to medical care within the meaning of the first-mentioned provision. However, it is for the national courts to examine whether the Member States, in imposing such conditions, have observed the limits of their discretion in applying Community principles, in particular the principle of equal treatment, which is reflected, in matters relating to value added tax, in the principle of fiscal neutrality. Article 13A(1)(b) of the Sixth Directive thus precludes national legislation which makes the exemption of those medical tests subject to the condition that they be carried out under medical supervision. The term ‘medical care’ in that provision covers not only treatment provided directly by doctors or other health professionals under medical supervision, but also paramedical services given in hospitals under the sole responsibility of persons who are not doctors. However, that provision permits such legislation to make the exemption of those tests subject to the condition that at least 40% of those services must be intended for persons insured by a social security authority. In order to determine whether establishments governed by private law may be recognised for the purpose of the application of the exemption provided for in Article 13A(1)(b) of the Sixth Directive, the national authorities may, in accordance with Community law and subject to review by the national courts, take into consideration, inter alia and in addition to the public interest of the activities of the taxable person in question and the fact that other taxable persons carrying on the same activities already have similar recognition, the fact that the costs incurred for the treatment in question may be largely met by health insurance schemes or other social security bodies. (see paras 29-30, 48, 51, 53, 55, operative part)