Opinion of the Advocate General — ECLI:EU:C:2015:430
Date: 2015-06-25
Language of the case: Portuguese
Subject matter: Right of establishment;Taxation;Approximation of laws;Freedom to provide services;Value added tax
Procedure: Reference for a preliminary ruling
Origin: Portugal

Summary — Judgment of the Court (Fourth Chamber), 29 October 2015 1. Harmonisation of fiscal legislation — Common system of value added tax — Taxable persons — Bodies governed by public law — Treatment as non-taxable persons in respect of activities in which they engage as public authorities — Exceptions — Supply of services effected for consideration — Concept (Council Directive 2006/112, Arts 9 and 13) 2. Harmonisation of fiscal legislation — Common system of value added tax — Taxable persons — Economic activities — Concept — Provision of services in respect of the planning and management of a regional health service — Included (Council Directive 2006/112, Art. 9(1)) 3. EU law — Interpretation — Principles — Independent interpretation — Limits 4. Harmonisation of fiscal legislation — Common system of value added tax — Taxable persons — Bodies governed by public law — Treatment as non-taxable persons in respect of activities in which they engage as public authorities — Concept — Provision by a company of services in respect of the planning and management of a regional health service — Included — Conditions — Existence of an economic activity — Classification of the company as a body governed by public law — Independent interpretation (European Parliament and Council Directive 2004/18, Art. 1(9); Council Directive 2006/112, Art. 13(1)) 1. See the text of the decision. (see paras 31-33) 2. Article 9(1) of Directive 2006/112 on the common system of value added tax must be interpreted as meaning that an activity whereby a company provides a region with services in respect of the planning and management of the regional health service under the programme agreements concluded between that company and that region constitutes an economic activity within the meaning of that provision. In that regard, the direct link between the supply of services and the consideration received does not appear to be called into question by the fact that the service provider’s activity is intended to fulfil a constitutional obligation exclusively and directly incumbent upon the State under the national constitution, namely the obligation to implement a national health service which is universal and potentially free, to be financed, in essence, by public resources. Under Article 9(1) of Directive 2006/112, a taxable person means any person who, independently, carries out any economic activity, whatever the purpose or results of that activity. (see paras 39, 40, 42, operative part 1) 3. See the text of the decision. (see para. 52) 4. Article 13(1) of Directive 2006/112 on the common system of value added tax must be interpreted as meaning that an activity, whereby a company provides a region with services in respect of the planning and management of the regional health service under the programme agreements concluded between that company and that region, falls under the rule of treatment as a non-taxable person for value added tax purposes, laid down by that provision, in a situation where that activity constitutes an economic activity within the meaning of Article 9(1) of that directive, if, which it is for the referring court to ascertain, it can be considered that that company must be classified as a body governed by public law and that it carries out that activity as a public authority, in so far as the referring court finds that the exemption of that activity is not such as to lead to significant distortions of competition. In that context, the concept of other bodies governed by public law within the meaning of Article 13(1) of that directive must not be interpreted by reference to the definition of body governed by public law in Article 1(9) of Directive 2004/18 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts. (see para. 75, operative part 2)