Opinion of the Advocate General — ECLI:EU:C:2001:498
Date: 2001-09-27
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Taxation;Value added tax
Procedure: Reference for a preliminary ruling
Origin: Germany

summary which I shall now proceed to make. (a) Arguments of the parties 55. The German Government and the Finanzamt staunchly contest any claim that Article 13(A)(1)(g) is directly applicable, emphasising above all that the tax exemption for which it provides can indeed also be granted to organisations other than bodies governed by public law, but only on condition that they are recognised as charitable by the Member State concerned. Until such formal recognition is granted, the provision cannot be applied to the organisations in question; which implies that it is not unconditional and hence lacks one of the essential requirements for being considered to be directly applicable. 56. They observe that the case in point is very different from the situation dealt with by the Court in Becker. That case discussed the incidence, for the purposes of the direct applicability of a provision of the directive, of the introductory sentence of Part B of Article 13 (which is identical to that of Part A(1) of the same article; see paragraph 2 above), which alludes to any conditions Member States may lay down for the implementation of the directive; (32) in the present case, by contrast, the provision refers explicitly to an act of the State laying down whether, when, on what conditions and to what extent recognition should be granted. 57. It is therefore evident, in their view, that recognition is a constitutive element of the charitable nature of the organisation and requires a formal measure by the legislature of the Member State concerned. They contend that it cannot be granted by administrative means nor can it be deduced implicitly case by case, not only because before 1992 German law made no provision for organisations recognised as charitable but also because any other conclusion would imply a broad interpretation of the exemptions under Article 13, which, as has been stated several times, are to be interpreted strictly. Moreover, to admit the possibility of recognition on a case-by-case basis, implicitly or by administrative means, would inevitably mean sacrificing the principle of legal certainty. 58. Nor, in their opinion, can third parties, such as health insurance funds, grant recognition when signing agreements for the provision of home nursing services by the organisations in question. The recipient of the tax revenue is the State, and only the State can waive a tax by granting an exemption, and under the German constitution it can do so only by means of legislation. According to this view, recognition granted solely for the purpose of reimbursing expenses associated with the services provided to the health insurance funds' contributors can therefore not have any effect in the tax sector, that is to say in a sector other than the social security sector. 59. In any case, they point out, Article 249 EC expressly recognises that Member States, who are responsible for implementing Community directives, are obliged to achieve that result but remain free to choose the ways and means of attaining it. All the more so when, as in the present case, the Member State is also granted wide powers of discretion as to the content of the implementing provision. In the present case, on the one hand the Federal Republic of Germany initially considered that there was no reason to recognise the organisations in question but subsequently modified its legislative policy once it realised the growing importance acquired during the 1980s by home nursing provided by private individuals; on the other hand, it took measures in this regard by introducing legislation. Hence in the view of these parties there is no reason to limit the freedom granted to the State by imposing retroactive recognitions obtained in forms or under conditions different from those laid down by the German legislature. 60. In conclusion, the German Government and the Finanzamt observe that in the present case, given that recognition was granted only from 1992 onwards by means of the amendments introduced by the StÄndG, Kügler cannot claim the exemption for the period before that date. 61. The Commission and Kügler adopt a completely different position. The former agrees that, as the applicability of Article 13(A)(1)(g) depends on prior recognition by the State concerned of a body as being an organisation recognised as charitable, it is not possible as a matter of principle to acknowledge that the provision is unconditional. In its opinion, however, this does not completely exclude the possibility that the provision is directly applicable if it can be demonstrated that in certain cases the State has recognised the organisation in some way, particularly as the remainder of the provision indicates in sufficiently precise and unconditional terms the activities that benefit from the exemption. It maintains that any other solution would run counter to the very rationale of the principle of direct applicability of the provisions of a directive, which is intended to ensure the effectiveness of those provisions by giving the persons concerned the possibility of relying on them against any incompatible national provision. 62. Hence, according to the Commission, if in a specific case there are sufficient indications to state that the conditions laid down in the directive obtain, there is no reason to deny the direct applicability of the directive. Moreover, it is in that sense that the Court ruled in the Carbonari case, which also dealt with the absence of prior recognition by Member States of certain forms of training for a professional category (in that instance medical specialists) prescribed by a Community directive. In that case the Court held that despite the absence of measures by the State the relevant provision of the directive could have direct effect because the conditions it laid down were sufficiently precise for it to be possible in a particular case to determine that the necessary training requirements had been met. (33) 63. Similarly, the Commission continues, if there are grounds for considering that an organisation is in some way considered to be charitable in a Member State, it is for the competent authorities in that State to assess whether this is sufficient to meet the condition laid down in Article 13(A)(1)(g). For that purpose, it is not necessary that recognition be granted by way of legislation, given also that nothing in that provision authorises such a deduction (34) and that in fact this would make it too difficult to rely on the direct effect of the provision; recognition can also be granted by an administrative body and for reasons other than those contemplated in the provision in question. 64. The Commission then excludes the possibility that the direct applicability of the latter can be precluded by the provisions of Article 13(A)(2)(a) and (b) of the Sixth Directive. As we have seen (in paragraph 2), the first of these provisions gives Member States the right to make the granting of the exemptions provided for in the first paragraph of Article 13(A) subject to certain conditions; if the State has not availed itself of that right, the unconditional and sufficiently precise nature of subparagraph (1)(g) does not permit it to rely, as against a taxpayer who is able to show that his tax position actually falls within one of the categories of exemption laid down in the directive, upon its failure to adopt the very provisions which are intended to facilitate the application of that exemption (Becker, paragraph 33). The second provision, by contrast, lists the conditions in which the exemption may not be granted. In this case too, however, the Commission points out that, in accordance with the case-law of the Court, the mere possibility of such limitations does not provide grounds for excluding the unconditional and sufficiently precise nature of the provision in question. (35) 65. Finally, the Commission points out that even if the Court were to establish that Article 13(A)(1)(g) is not directly applicable, the Federal Republic of Germany would still be required, under Article 10 EC, to take all necessary measures to ensure full compliance with Community law, so that the national court would in any case be required to interpret Article 4(16) of the UStG in the light of the wording and purpose of the Sixth Directive in order to ensure its compatibility therewith. 66. Following the same line as the Commission but in more specific terms, Kügler also maintains that, in accordance with the case-law of the Court, (36) recognition can also stem from other provisions and from the principles of the relevant legislation. 67. In particular, the applicant in the main proceedings states that the services it provides are closely associated with welfare and social security and that, as the Bundesfinanzhof also states, (37) its activities are financed by health insurance funds and by social security and welfare bodies. Moreover, even before 1992 various national provisions, of different kinds but all relating to the social security and welfare sectors, expressly mentioned private operators. These provisions include in particular those which from the early eighties onwards governed the special relations between on the one hand those providing services such as assistance, including out-patient medical assistance, and on the other the health insurance funds and social security and welfare bodies, in other words the organisations bearing the greater part of the cost of such services. The applicant also cites the legislation of certain Länder, administrative practices and provisions on the basis of which, in essence, tax exemption was granted for the activities in question on condition that they were provided by associations or by persons recognised by the health insurance funds. 68. Finally, the applicant points out that the line it advocates is above all more consistent with the objective of the law, in that it makes it possible to limit medical and social security expenses, and hence the contributions which subscribers pay to the health insurance funds and the social security bodies, even though the German Government retorts that other instruments could be used to limit such expenses. (b) Assessment 69. I have reported the arguments of the parties at some length in order to bring out clearly the terms of the debate which took place among them and the nature of the disagreement which divides them. As we have seen, the Commission and the Federal Republic of Germany diverge mainly on a question of principle, namely the possibility that a provision such as Article 13(A)(1)(g) be recognised as being directly applicable. By contrast, the Finanzamt and Kügler concentrate more on the factors which, in the case in point, should or should not cause the applicant to be classified as a charitable organisation. It hardly need be noted that, whereas the second question falls more within the sphere of assessment of the national judge and is conditioned by the solution of the first question, the first question falls within the direct jurisdiction of the Court of Justice. It is therefore on this question that attention must be focused here. 70. As we have seen, the central tenet of the German Government's position is that the freedom and discretion which the provision at issue grants to the Member States completely precludes the possibility of postulating the direct applicability of the provision. The Commission, for its part, in principle shares this line of argument but disputes the claim that the provision has general scope and that it can be deduced from this that it is absolutely impossible to recognise that a particular body is a charitable organisation, even when conclusive evidence is available. 71. Having thus delineated the boundaries of the central issue raised by the question under examination, I shall now proceed to examine more closely the arguments that support the position of the parties, beginning with those of the German Government. 72. As the German Government insistently states, it is certainly undeniable that the provision at issue leaves the Member States wide discretion as regards recognition of the organisations in question; I do not believe, however, that the argument is decisive in itself. As the Commission has pointed out, in the Becker judgment the Court explicitly stated with regard to the Sixth Directive but on the basis of established and wider case-law that the general nature of the directive in question or the discretion which ... it leaves to the Member States may not be relied upon in order to deny any effect to those provisions which in view of their subject-matter may be relied upon to good purpose before a court even though the directive as a whole has not been implemented. (38) It is therefore a matter of ascertaining in concrete terms whether, despite the discretion accorded to the Member States, the directive can also have direct effect. 73. Nevertheless, the German Government adds, the applicability of the provision in question is subject not to the exercise of a general discretionary power by the State concerned but to the adoption of an appropriate legislative provision by that State. It seems to me, however, that the Commission is not wrong when it objects that nothing in the provision in question gives grounds for deducing that the recognition of which it speaks must be granted in a specific form, let alone by law. Indeed, the argument of the German Government seems to me to be a mere presumption, very probably based on the fact that in Germany, as in other Member States, charges can be imposed only by law. It should be noted, however, that the case before us relates not to the introduction of new taxes but the granting of tax exemptions in the instances authorised, for all the Member States, by a Community provision; moreover, directives cannot be interpreted or applied according to individual state systems of law, as they must be implemented uniformly in all the Member States. The only indication to be gleaned from the provision at issue is therefore that the charitable nature of the organisations in question must be recognised, the methods and procedures for so doing remaining as a matter of principle the prerogative of the State involved, without other constraints or limitations. 74. If that is the case, the lack of appropriate legislative recognition of the organisations in question cannot be considered in itself such as to prejudice the direct applicability of the provision, but it must be ascertained whether the law of the Member State involved does not also make it possible to reconstruct, by other means, some form of recognition of the charitable nature of the organisation, albeit only de facto. Such verification is necessary, because we are dealing here with a right, in the form of a tax exemption, which the directive accords to taxpayers in a particular condition. It is true that it is first and foremost for the State to define that condition, but the Court has clarified, again in the Becker case (but not only there), that a Member State which has failed to adopt the implementing measures foreseen in the directive may not plead its own omission in order to refuse to grant to a taxpayer an exemption which he may legitimately claim under the directive (paragraph 34). Hence, I repeat, if it is possible to reconstruct by other means the conditions for the recognition in question, the principles of Community law, and that of the effectiveness of the directives above all, require that the persons concerned not be prevented from exercising a right sanctioned by the directive in question. (39) 75. The German Government, however, adduces yet more objections to that conclusion. First, it states that in the Comune di Carpaneto Piacentino case no state regulation existed classifying the bodies indicated in the relevant provision because such classification was made by reference to national law; it could therefore be made by the court directly on the basis of such law, whereas in the present case specific action by the State is required. I consider, however, that this objection is based on the same petition of principle that I have examined and criticised above, in the sense that it takes for granted the point that in fact has to be established, namely whether action by the State is essential in this case. 76. Secondly, the German Government objects that, again in the Comune di Carpaneto Piacentino case but also in the Carbonari case cited previously, the conditions and requirements for recognition of the qualifications indicated in the relevant provisions could be reconstructed on the basis of the directive itself in the absence of appropriate state regulations, whereas Article 13A(1)(g) does not contain any information that can make up for the lack of measures by the State to classify charitable organisations. 77. I have no difficulty recognising that, for these very reasons, in the absence of appropriate legislation it is indeed much more difficult to identify such organisations; I do not believe, however, that it is absolutely impossible, as the German Government contends, and this is also the reason for the Commission's disagreement. I would point out first and foremost that the concept of charitable organisation is not a technical and legal concept like that of body governed by public law, to take an example from the same measure. Hence it does not require a legislative definition, and the setting of formal identification criteria, but can be reconstructed on the basis of common concepts of the law. Secondly, I would not say that the directive did not provide any indication for reconstructing the concept in question. In addition to the general indications that can be gleaned from a systematic reading of the directive, it seems to me that some indications, albeit indirect ones, can also be deduced from specific provisions. I refer in particular to Article 13(A)(2), of which subparagraph (a), as we have seen in paragraph 2 above, lists a series of conditions which the Member States may from time to time apply to the exemptions contained in paragraph 1, hence including that laid down in subparagraph (g). These are, so to speak, maximum conditions, in the sense that the Member States may decide not to impose them or to impose lesser conditions, but they cannot impose other or more burdensome conditions. This means that if a body meets these conditions, that is already a useful indication that the requirements of the provision are met or, better still, that there are no grounds for possibly precluding recognition of its status as a charitable organisation. 78. It is clear, however, that the possibility of granting such recognition will have to be assessed essentially in the light of the law of the State involved. It will therefore be for the national court to assess each case on the basis of the principles of that law, and above all on the basis of the specific factors that are conclusive for that purpose, such as those which the parties in the present case have highlighted: the existence of specific provisions, whether national or regional, legislative or administrative, fiscal or welfare; the fact that associations engaging in the same activities as the applicant already enjoyed a similar exemption in consideration of their public interest; the fact that the costs of the services may have been borne largely by statutory health insurance funds or by social security or welfare bodies with which private operators such as the applicant had contractual relationships, and so forth (see paragraph 67 above). I repeat, it will certainly not be easy to overcome in this way the impediment of the lack of a clear and explicit provision from the State, but for the reasons of principle and other specific reasons I have outlined above, I consider that it is not possible, a priori and absolutely, to exclude the possibility of such an outcome. 79. Finally, I note that the solution envisaged here cannot be challenged by arguing that it would entail a broad interpretation of the Sixth Directive, in contrast to the opposite interpretative criterion, which has to be adopted in this regard, as has been stated repeatedly. This is because this solution does not extend the scope of the exemption beyond that laid down in the directive but merely makes it possible to grant the exemption to persons who would be entitled to it within the meaning of the directive. If anything, a problem of compatibility with the usual criteria for interpreting Community law arises for the opposite proposition, given that the provision in subparagraph (g) is an exception to the principle that the exemptions provided for in Article 13 ... have their own independent meaning in Community law ... That must also be true of the specific conditions laid down for those exemptions to apply and in particular of those concerning the status or identity of the economic agent performing the services covered by the exemption (see the judgment in Bulthuis-Griffioen, cited above, paragraph 18). In other words, if in doubt it is necessary as far as possible to opt for an interpretation that respects and, if anything, accentuates the independent nature of the concept in question, given that such an interpretative criterion aims to avoid excesses, in one direction or another, in the interpretation of the directive and to favour its uniform application. 80. In conclusion, I consider that as a matter of principle a case can be made for the direct application of the provision in question and that it is therefore necessary to reply to the second part of the third question from the court of reference that the direct applicability of Article 13(A)(1)(g) of the Sixth Directive cannot be excluded, despite the absence of relevant legislation by the State involved, where the national court is able to determine, on the basis of all the conclusive evidence, that the taxpayer is an organisation recognised as charitable. V - Conclusion 81. In the light of the foregoing considerations, I therefore propose that the Court rule that: (1) The exemption provided for in Article 13(A)(1)(c) of the 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 independent of the legal form of the person providing the medical care. (2) The exemption provided for in Article 13(A)(1)(c) of the Sixth Directive is applicable only to the turnover relating to therapeutic care provided by qualified nursing personnel, including such treatment provided on an out-patient basis, and to related services that are strictly necessary and physically and economically indissociable therefrom. (3) (a) General care and domestic help fall within the scope of Article 13(A)(1)(g) of the Sixth Directive. (b) It cannot be excluded that Article 13(A)(1)(g) of the Sixth Directive has direct effect, even in the absence of relevant legislation in the State concerned, where the national court is able to determine, on the basis of all the conclusive evidence, that the taxpayer is an organisation recognised as charitable. 1: - Original language: Italian. 2: - 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). 3: - BGBl. I 1979, p. 1953. 4: - The translation of the national provisions is not official. 5: - The amendments were introduced in the 1992 Steueränderungsgesetz (Tax Amendment Law) amending tax legislation, referred to hereinafter as the StÄndG; BGBl. I 1992, p. 297, especially p. 317. 6: - BGBl. I 1987, p. 657. 7: - In other words, persons in need of economic assistance within the meaning of Article 53(1)(2) of the Abgabenordnung (Tax Code) of 1977 (BGBl. I 1976, p. 613, and amendment I 1977, p. 269). 8: - Case C-216/97 Gregg [1999] ECR I-4947. 9: - Case 353/85 Commission v United Kingdom [1988] ECR 817. 10: - Case C-193/91 Mohsche [1993] ECR I-2615, paragraph 17. 11: - Under Article 2 of the Sixth Directive, in Title II under the heading Scope, the following shall be subject to value added tax: 1. the supply of goods or services effected for consideration within the territory of the country by a taxable person acting as such; 2. the importation of goods. In contrast, Article 4(1), in Title IV under the heading Taxable persons, provides that 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. 12: - For a similar approach in the interpretation of the third indent of Article 9(2)(e) of the Sixth Directive, see Case C-145/96 von Hoffmann [1997] ECR I-4857, in which the Court observed that the provision in question does not refer to professions, such as those of lawyers, consultants, accountants or engineers, but to services. The Community legislature has used the professions mentioned in that provision as a means of defining the categories of services to which it refers (paragraph 15). 13: - See the fourth and fifth recitals of the Sixth Directive and Case C-283/95 Fischer [1998] ECR I-3369, paragraph 27, which contains further references. 14: - Subsequently, in Case C-2/95 SDC [1997] ECR I-3017, the Court further stated that as regards, more specifically, the legal form of the company supplying or receiving services, ... it must be concluded that, if the identity of the persons involved is immaterial in determining whether the service in question is exempt from VAT under points 3 and 5 of Article 13B(d), the type of legal person represented by the operators concerned is a fortiori immaterial (paragraph 35). 15: - See in this connection the Opinion delivered by Advocate General Saggio in Case C-384/98 D. v W. [2000] ECR I-6795, paragraph 16. 16: - Case C-453/93 Bulthuis-Griffioen [1995] ECR I-2341, paragraph 18; reference is also made to Case 348/87 SUFA [1989] ECR 1737, paragraph 11. 17: - SUFA, paragraph 13. 18: - Bulthuis-Griffioen, paragraph 20. 19: - See for example SDC, paragraph 21, which also contains further references. 20: - The Opinion of Advocate General Cosmas in the Gregg case goes in the same direction (paragraph 28). 21: - I wish to point out that, with regard to the exemption under Article 13A(1)(b) of the Sixth Directive, which also contains indications about the persons carrying out the exempted activities, Advocate General Cosmas observed that from the general structure of the system of tax exemptions, it appears clear that the reason for those exemptions from tax is the type and conditions of the supply of the specific activities, factors which do not depend on the legal personality of the operator (Opinion in Gregg, paragraph 26). 22: - Gregg, paragraph 14. 23: - I must point out, however, that in the subsequent Gregg judgment, as I have indicated above (paragraph 21), the Court openly adjusted its focus and recognised that even where the directive speaks of establishment and organisation the exemption is not limited to operations performed by legal persons (paragraph 17). 24: - In this regard, see also the Opinion of Advocate General Saggio in Case D., in which he expressed a similar view (paragraph 16). 25: - Case C-349/96 CPP [1999] ECR I-973, where it is stated that there is a single supply in particular in cases where one or more elements are to be regarded as constituting the principal service, whilst one or more elements are to be regarded, by contrast, as ancillary services which share the tax treatment of the principal service. A service must be regarded as ancillary to a principal service if it does not constitute for customers an aim in itself, but a means of better enjoying the principal service supplied (paragraph 30, which contains further references). 26: - I wish to point out again that in Case 353/85 the Court speaks of a relationship which is normally established in the consulting room of the person providing the care (emphasis added), which seems implicitly to provide also for care provided outside the consulting room. 27: - See Case C-149/97 Institute of the Motor Industry [1998] ECR I-7053, paragraph 18 (emphasis added), which also contains further references, including one to the judgment in Case 107/84 Commission v Germany [1985] ECR 2655, which the Finanzamt also cites. 28: - See Case C-306/94 Régie dauphinoise [1996] ECR I-3695, paragraph 20 et seqq., with regard to Article 19(2), Case C-327/94 Dudda [1996] ECR I-4595, paragraphs 25-31 with regard to the first indent of Article 9(2)(c), CPP, op. cit., paragraphs 26-32, on questions submitted for a preliminary ruling stemming from the application of Article 13B(a) relating to insurance operations and the supply of services related to such operations, and Case C-76/99 Commission v France [2001] ECR I-249, paragraphs 22-30, on Article 13A(1)(b). 29: - See CPP, paragraph 32. 30: - See my Opinion in Case 353/85, in which the Court describes the medical care under subparagraph (c) as that normally [provided] in the consulting room of the person providing it (see paragraphs 36 to 42 above). 31: - To cite only the precedents mentioned by the parties themselves, see the judgments in Becker, at paragraph 25, and Mohsche, at paragraph 17. 32: - It alludes in particular to the passage in that judgment in which the Court stated that the unconditional nature and hence direct effect of an exemption cannot be called into question solely because the Member States are granted a degree of discretion on aspects that do not in any way affect the definition of the subject-matter or the exemption conferred (paragraph 32). 33: - Judgment in Case C-131/97 Carbonari and Others [1999] ECR I-1103, in which the Court ruled on the direct applicability of the Annex to Council Directive 75/363/EEC of 16 June 1975 concerning the coordination of provisions laid down by law, regulation or administrative action in respect of activities of doctors, as amended by Council Directive 82/76/EEC of 26 January 1982. Point 1 of the Annex stipulates that the training of specialist doctors must be carried out in specific posts recognised by the competent authority, which must lay down the practical and theoretical rules for training. However, the Court stated that although the same provision requires that the rules be determined by the competent authorities, the requirements of full-time training listed under that point are sufficiently precise to enable the national court to determine which of the applicants in the main proceedings belonging to the category of trainee specialists fulfilled the requirements of full-time training in specialised medicine in accordance with the coordination directive and Directive 82/76 prior to the academic year 1991/92 (paragraph 34). 34: - On the contrary, as Kügler notes, subparagraphs (b) and (p) of the provision speak of duly recognised situations, whereas that more restrictive adverb does not appear in subparagraph (g). 35: - See in support of this Joined Cases 231/87 and 129/88 Carpaneto Piacentino and Others [1989] ECR 3233, paragraph 32, in which the Court was asked to rule on the direct applicability of a provision of the Sixth Directive which allows the exemption from tax to be excluded subject to certain conditions (see the first and second paragraphs of Article 4(5) of the Sixth Directive: States, regional and local government authorities and other bodies governed by public law shall not be considered taxable persons in respect of the activities or transactions in which they engage as public authorities, even where they collect dues, fees, contributions or payments in connection with these activities or transactions. However, when they engage in such activities or transactions, they shall be considered taxable persons in respect of these activities or transactions where treatment as non-taxable persons would lead to significant distortions of competition). The Court stated that given the merely conditional nature of the limitation, the provision may be relied upon before the national court, although its application involves an assessment of economic circumstances. 36: - In particular, Kügler cites Cases 29/84 Commission v Germany [1985] ECR 1661 and 361/88 Commission v Germany [1991] ECR I-2567. 37: - The Bundesfinanzhof points out, inter alia, that according to a recent judgment of the Bundesverfassungsgericht (Federal Constitutional Court), if the cost of health services is regularly charged to social security organisations, their exemption from tax does not conflict with the objective of Article 4(14) of the UStG (see the judgment in Case 2 BvR 2861/93, UR 1999, p. 498). 38: - Paragraph 30. See also, inter alia, Cases C-10/92 Balocchi [1993] ECR I-5105, paragraph 34, and C-62/93 BP Supergas [1995] ECR I-1883, paragraph 34. Also with regard to Article 13 of the Sixth Directive, see in the same vein Case C-346/97 Braathens Sverige [1999] ECR I-3419, paragraph 31, which relates to Article 8(1) of Council Directive 92/81/EEC of 19 October 1992 on the harmonisation of the structures of excise duties on mineral oils (OJ 1992 L 316, p. 12), the introductory section of which is identical in substance to that of Article 13A(1) of the Sixth Directive, and Case C-150/99 Stockholm Lindöpark [2001] ECR I-493, paragraphs 29-33, which deals with Article 13B of the Sixth Directive. 39: - I would point out in this regard that in the judgment in the Comune di Carpaneto Piacentino case, where it had to be decided whether a provision of the Sixth Directive (the first subparagraph of Article 4(5)) granting tax exemption to public bodies acting as public authorities had direct effect, the Court stated that the only criterion making it possible to distinguish with certainty [between the activities performed by such bodies as public authorities and those engaged in by them as persons subject to private law] is the legal regime applicable under national law (paragraph 15). Having specified that it is therefore for the national court to classify the activity at issue (ibid.), the Court held that the provision had direct effect in that the bodies and activities in regard to which the rule of treatment as non-taxable persons applies are clearly defined in that provision (paragraph 31).