Judgment;Summary — ECLI:EU:C:2020:169
Date: 2020-03-05
Language of the case: German
Court formation: Sixth Chamber
Subject matter: Taxation;Value added tax
Procedure: Reference for a preliminary ruling
Origin: Germany

Translation C-48/19 — 1 
Case C-48/19 
Request for a preliminary ruling 
Date lodged: 
25 January 2019 
Referring court: 
Bundesfinanzhof (Federal Finance Court, Germany) 
Date of the decision to refer: 
18 September 2018 
Applicant, and Appellant in the appeal on a point of law: 
X-GmbH 
Defendant, and Respondent in the appeal on a point of law: 
Z Tax Office 
  
[...] 
FEDERAL FINANCE COURT 
[...] 
ORDER 
In the case of 
X GmbH, 
Applicant, and Appellant in the appeal on a point of law, 
[...] 
v 
Z Tax Office, 
Defendant and respondent in the appeal on a point of law, 
EN 
REQUEST FOR A PRELIMINARY RULING OF 18. 9. 2018 — CASE C-48/19 
 
2  
concerning a provisional VAT payment in February 2014, 
the XIth Chamber 
[...] 
made the following order at the hearing of 18 September 2018: 
I. The following questions are referred to the Court of Justice of the European 
Union for a preliminary ruling: 
1. In circumstances such as those in the main proceedings, in which a 
taxable person [Or. 2] advises insured persons on various topics 
relating to healthcare and medical conditions by telephone on behalf of 
health insurance funds, does this constitute an activity that falls within 
the scope of Article 132(1)(c) of Council Directive 2006/112/EC of 
28 November 2006 on the common system of value added tax? 
2. In circumstances such as those in the main proceedings, is it sufficient, 
in relation to the services referred to in question 1 and in respect of 
turnover in the context of ‘patient support programmes’, for the 
required evidence of professional qualifications if the consultations 
over the telephone are conducted by ‘health coaches’ (medical 
assistants, nurses) and a doctor is consulted in approximately one third 
of the cases? 
II. [...][stay of proceedings] 
Grounds 
A. 
1 Facts of the main proceedings 
2 The applicant and appellant in the appeal on a point of law (applicant), a limited 
liability company, operated a so-called healthcare hotline on behalf of statutory 
health insurance funds in February 2014 (the time of the facts at issue), in the 
context of which medical advice was given to the insured person, and ran patient 
support programmes for patients suffering from chronic or long-term illnesses. 
[Or. 3] 
3 The telephone consultation services were provided by nurses and medical 
assistants who, for the most part, were also trained as health coaches. In over one 
third of the cases, a doctor, generally a specialist doctor, was also consulted and 
assumed responsibility for the consultancy or provided instructions or a second 
opinion in the case of queries. 
4 In the context of the healthcare hotline, the applicant set up information hotlines 
via which the insured persons could generally contact employees of the applicant 
X 
 
3 
around the clock and every day of the year. The applicant’s employees identified 
themselves using the name of the respective health insurance fund. If callers 
sought medical advice, a software-assisted assessment of the patient’s medical 
situation was carried out, that is to say the context of the specific case was 
assessed by means of targeted questions on the matter, and then advice was 
provided on the therapeutic care situation specified by the caller. In this context, 
diagnoses and possible therapies were explained and advice on changes to 
behaviour and treatment were provided. Examples: 
• An insured person suffering from a seizure was advised to continue 
entrusting himself to the care of his neurologist. 
• A caller who was suffering from breast cancer and complained about the 
anaesthesiologist participating in the operation and the surgeon was referred 
to the conciliation board of the Federal Land’s medical association owing to 
a potential error in her treatment, because the health insurance fund was not 
responsible for such a case. 
• An insured person who, after the surgical removal of her womb and ovaries, 
was suffering from light bleeding and had already consulted three 
gynaecologists who were unable [Or. 4] to help her was provided with 
information about possible postoperative therapy following malignant 
metastatic tumours in the lower abdomen, even though the caller had 
communicated that the suspected presence of cancer had not been 
confirmed. 
• A caller who was suffering from glucose intolerance and was worried about 
a diabetes disorder was advised to consult a diabetologist. She was provided 
with information about insulin treatment and advised on diabetes mellitus 
and prediabetes. 
• A caller with cardiac arrhythmia — which had not been confirmed by the 
cardiologist — and a food intolerance was initially provided with an 
explanation of the symptoms of cardiac arrhythmia, and was then advised to 
consult his general practitioner once again and possibly look for a different 
cardiologist. He was also given the contact details of cardiologists near him. 
• A caller was breastfeeding and wanted to take echinacea drops for her 
cold — in relation to which her general practitioner had not expressed any 
concerns. She was informed that they were not recommended during 
pregnancy. 
• A caller who had been suffering from diarrhoea and anxiety disorders for ten 
years and was enquiring about hypnosis was advised to undergo therapy; 
suitable doctors were also mentioned. 
REQUEST FOR A PRELIMINARY RULING OF 18. 9. 2018 — CASE C-48/19 
 
4  
5 A random selection of the calls from cases that had been closed were played back 
to the medical director and, in particular, reviewed with regard to the medical and 
professional traceability of the documented details. 
6 The health insurance fund determined the participants of the patient support 
programme on the basis of accounting data and symptoms, wrote to them, and 
admitted them to the programme if they so wished. The participants, who were 
telephoned by employees of the applicant over a period of three to twelve months, 
could call the medical hotline at any time in the event of questions and receive 
information regarding their symptoms and specific situation 24 hours a day. The 
focus of the support programme was to improve the understanding of the 
participants and their relatives of their illness and the regular and prescribed intake 
of medication or the participation in other types of therapy, to avoid taking the 
wrong medication and to bring about an appropriate response to worsening 
symptoms and social isolation. The aim was to manage costs in respect of insured 
persons with chronic or physical illnesses more effectively and, in particular, 
significantly reduce the number of new admissions of participants as inpatients. 
Other aims in the case of a presumptive diagnosis of outpatients in connection 
with attention deficit disorder or attention deficit hyperactivity disorder were to 
support parents and relieve the burden on them with a view to reducing secondary 
complications. 
7 The applicant categorised its turnover from the operation of the healthcare hotline 
and the patient support programme as medical care and declared tax-exempt 
transactions in that regard for the period in question. 
8 The defendant and respondent in the appeal on a point of law (the Finanzamt (Tax 
Office, FA)) assessed the transactions concerned as taxable and set the provisional 
VAT payment for February 2014 at a figure that differed from the provisional 
declaration. 
9 The Finance Court (FC) dismissed the action. It stated that the applicant’s 
telephone consultancy services were not [Or. 6] exempt from value added tax as 
the provision of medical care. The information provided in the context of the 
healthcare hotline was not based on medical findings that had been established by 
appropriate specialist staff, but rather were based solely on the details provided by 
callers in relation to their symptoms, about which they were seeking further 
information, whether that be with regard to the type of diagnosis, treatment 
possibilities or preventative measures. Only around 60% to 70% of the enquires 
received via the healthcare hotline were initiated as a result of a previous 
diagnosis of an illness. The applicant did not make any remote diagnoses, but 
rather merely provided more detailed information regarding an illness or 
diagnoses. Nor did the consultancy services of the patient support programme 
have the required therapeutic purpose. The services were neither prescribed by 
practitioners nor carried out in the context of an individual precautionary or 
rehabilitation measure. 
X 
 
5 
10 [...] [citation of the FC decision] 
11 By way of the appeal on a point of law, the applicant essentially asserts that its 
preventive consultation services were eligible for tax exemption, as they were 
directly connected with illness and served to avoid subsequent higher costs as a 
result of the provision of medical care. As in the case of preliminary or emergency 
consultations, a previous diagnosis made by medical practitioners was not a 
requirement. (Initial) telephone contact between a doctor and patient was also part 
of a medical service that was exempt from tax. Moreover, telemedicine services 
were becoming increasingly important. [Or. 7] 
12 The FC defends the contested initial decision and states that — even if the 
individual healthcare case of the caller were the reason for the telephone call — it 
was only possible to explain a range of generally conceivable medical 
possibilities, owing to the lack of medical files. Aside from general medical 
information, the telephone call was only able to provide assistance with the 
decision as to whether the caller should consult a (further) doctor, for example, or 
continue with the therapy/treatment suggested by his doctor. 
B. 
13 The Chamber stays the proceedings [...]and refers the questions set out in the 
operative part to the Court of Justice of the European Union (‘Court of Justice’) 
for a preliminary ruling pursuant to Article 267(3) of the Treaty on the 
Functioning of the European Union (TFEU). 
14 I. The relevant legal provisions 
15 1. National law 
The following provisions of the Umsatzsteuergesetz (Law on turnover tax) in the 
version of the Jahressteuergesetz (Annual Tax Act) 2009 of 19 December 2008 
(Bundesgesetzblatt (Federal Law Gazette) I 2008, 2794) — UStG — are decisive 
for the assessment of the case in dispute: 
(a) Paragraph 1 Taxable transactions 
‘(1) The following transactions shall be subject to turnover tax: 
1. supplies of goods and services effected for consideration within the territory of 
the country by a trader in the course of his business. …’ [Or. 8] 
(b) Paragraph 4 Exemptions in respect of supplies of goods and services 
‘The following transactions covered by Paragraph 1(1)(1) shall be exempt: … 
14. (a) the provision of medical care in the exercise of the profession of doctor, 
dentist, lay medical practitioner, physiotherapist, midwife or a similar healthcare 
profession. [...]’. 
REQUEST FOR A PRELIMINARY RULING OF 18. 9. 2018 — CASE C-48/19 
 
6  
16 2. EU law 
In terms of European Union law, the following provisions of Council Directive 
2006/112/EC of 28 November 2006 on the common system of value added tax 
(Directive 2006/112/EC) are of significance: 
(a) Article 2 Tax application area 
‘The following transactions shall be subject to VAT: 
(a) the supply of goods and services for consideration within the territory of the 
country by a taxable person acting as such; 
...’. 
(b) Article 132 Exemptions for transactions in the public interest 
‘1. Member States shall exempt the following transactions: … 
(c) the provision of medical care in the exercise of the medical and paramedical 
professions as defined by the Member State concerned; 
[...]’. 
17 II. The reference to the Court of Justice [Or. 9] 
18 1. The applicant’s services provided in the context of the healthcare hotline are 
taxable pursuant to the first sentence of Paragraph 1(1)(1) UStG and 
Article 2(1)(a) of Directive 2006/112/EC. It is questionable whether they involve 
the provision of medical care that falls within the scope of the tax exemption 
under the first sentence of Paragraph 4(14)(a) UStG and Article 132(1)(c) of 
Directive 2006/112/EC. 
19 (a) The concept of provision of medical care constitutes an independent concept of 
European Union law (cf. Court of Justice judgments Unterpertinger of 
20 November 2003, C-212/01, EU:C:2003:625, [...], paragraph 35; 
D’Ambrumenil and Dispute Resolution Services of 20 November 2003, C-307/01, 
EU:C:2003:627, [...] paragraph 53), and Paragraph 4(14)(a) UStG must be 
interpreted in accordance with the directive (established case-law, [...] [citations 
for case-law of the Federal Finance Court — BFH]). 
20 (b) According to the relevant case-law, the concept of ‘medical care’ and that of 
‘the provision of medical care’ are both intended to cover services that have as 
their purpose the diagnosis, treatment and, in so far as possible, cure of diseases or 
health disorders (cf. Court of Justice judgments L.u.P. of 8 June 2006, C-106/05, 
EU:C:2006:380, [...] paragraph 27; CopyGene of 10 June 2010, C-262/08, 
EU:C:2010:328, [...] paragraph 28; [...] [Or. 10] [...] [citations for case-law of the 
BFH]). 
X 
 
7 
21 Medical care also includes interventions that serve — possibly only 
prophylactically — to protect human health, which includes maintaining or 
restoring human health (cf., in this regard, Court of Justice judgment Klinikum 
Dortmund of 13 March 2014, C-366/12, EU:C:2014:143, [...] paragraph 30, with 
further references; [...] [citations for case-law of the BFH]). Thus, interventions 
that aim to make it possible to monitor and examine patients before it becomes 
necessary to diagnose, treat or cure an illness are also covered ([...] [citation for 
case-law of the BFH]). 
22 (c) Medical care exists only if it has a therapeutic purpose, however, which is not 
to be interpreted in an especially narrow sense. Rather, the term ‘therapeutic 
purpose’ must be interpreted in light of the purpose of the tax exemption, which 
consists in reducing the costs of providing medical care (Court of Justice 
judgments Commission v France of 11 January 2001, C-76/99, EU:C:2001:12, 
[...] paragraph 23; Unterpertinger, EU:C:2003:625, [...] Rz. 40, D’Ambrumenil 
and Dispute Resolution Services, EU:C:2003:627, [...] paragraph 58; L.u.P., 
EU:C:2006:380, [...] paragraph 29; CopyGene, EU:C:2010:328, [...] paragraph 29; 
Verigen Transplantation [Or. 11] Service International of 18 November 2010, 
C-156/09, EU:C:2010:695, [...] paragraph 24, 27; PFC Clinic of 21 March 2013 
C-91/12, EU:C:2013:198, [...] paragraph 26; [...] [citations for case-law of the 
BFH]). 
23 Services that are an essential, inherent and inseparable part of the overall care 
process, none of the stages of which can usefully be performed in isolation from 
the others, are also carried out with a therapeutic aim (Court of Justice judgment 
Verigen Transplantation Service International, EU:C:2010:695, [...] 
paragraph 26). However, activities are not covered by the tax exemption where the 
care to which those activities are merely potentially related has not been 
performed, commenced or yet envisaged (Court of Justice judgment CopyGene, 
EU:C:2010:328, [...] headnote 1; [...] [citation for case-law of the BFH]). 
24 (d) In the case of measures that may serve both purposes of providing medical 
care and merely cosmetic purposes or to improve the general state of health and 
are thus to be placed in a borderline category, an assessment based on the 
circumstances of the individual case is carried out ([...] [citations for case-law of 
the BFH]). In this respect, account must be taken of the fact that the question of 
whether a service serves therapeutic or other purposes [Or. 12] involves an 
assessment of a medical question that must be based on medical findings that have 
been made by the appropriate specialists ([...] [citations for case-law of the BFH]). 
The purely subjective understanding that the patient has of the service is not in 
itself decisive for the purpose of determining whether it has a therapeutic purpose 
(Court of Justice judgment PFC Clinic, EU:C:2013:198, [...] paragraph 34 f.; [...] 
[citations for case-law of the BFH]). 
25 (e) According to these criteria, construed narrowly, the present consultancy 
services do not fall within the scope of the tax exemption, as it is not clear either 
whether the consultancy is associated with the provision of medical care or 
REQUEST FOR A PRELIMINARY RULING OF 18. 9. 2018 — CASE C-48/19 
 
8  
whether, as a ‘preliminary consultation’, they are part of a complex medical care 
process. In addition, the process of providing callers with information does not 
take place — at least in some cases — on the basis of previous medical findings or 
instructions, and in all cases it takes place without personal contact between the 
insured persons and the applicant’s employees, instead taking place over the 
telephone. 
26 (f) The Court of Justice needs to clarify whether its case-law is interpreted 
correctly if telephone consultation services with medical content that are provided 
independently of specific medical treatment or possibly in advance of such 
treatment are to be classified as falling outside the scope of Article 132(1)(c) of 
Directive 2006/112/EC, or whether it is necessary to consider the existing case-
law on the differentiation between the tax-exempt provision of medical care and 
treatments that [Or. 13] have been performed merely to satisfy general life needs, 
for example for leisure/wellness or cosmetic purposes. Otherwise, the telephone 
information services that were used not from a leisure or wellness perspective, but 
rather due to a specific medical concern on the part of the insured person, would 
not have to be excluded from the scope of the tax exemption under the first 
sentence of Paragraph 4(14)(a) UStG and Article 132(1)(c) of Directive 
2006/112/EC. In this respect, the Senate considers that, on a separate note, 
account should be taken of the fact that the importance of treatment provided 
without personal contact (for example via the internet) is likely to increase in the 
future due to technical advances and the shortage of doctors that exists in some 
cases. 
27 2. With regard to the services provided by the applicant in the context of the 
patient support programme and, if question 1 is answered in the affirmative, in the 
context of the healthcare hotline, the question that also arises for the applicant is 
whether, on account of the medium used, an additional qualification must be 
required of those performing the services. 
28 (a) The services provided in the context of the patient support programme that are 
taxable pursuant to Paragraph 1 UStG and Article 2(1)(a) of Directive 
2006/112/EC fall within the scope of the tax exemption under the first sentence of 
Paragraph 4(14)(a) UStG and Article 132(1)(c) of Directive 2006/112/EC. They 
involve the provision of medical care, since, as patient tutorials in the context of 
supplementary rehabilitation services (Paragraph 43(1)(2) of the Fifth Book of the 
Social Code — SGB V), they are provided only to participants with chronic 
illnesses diagnosed by medical specialists and therefore demonstrably have a 
therapeutic [Or. 14] aim. The lack of instructions from a doctor is irrelevant in 
this respect. 
29 (b) A service providing medical care is only exempt from tax pursuant to 
Article 132(1)(c) of Directive 2006/112/EC if it is provided in the exercise of the 
medical or paramedical professions. However, it is not necessary that every aspect 
of therapeutic treatment be performed by medical personnel (cf. Court of Justice 
X 
 
9 
judgment Verigen Transplantation Service International, EU:C:2010:695, [...] 
paragraph 28). 
30 (aa) Pursuant to Article 132(1)(c) of Directive 2006/112/EC, it is for the Member 
States to define the medical or paramedical professions. The discretion conferred 
in this regard covers not only the power to define the qualifications required to 
carry out the said professions, but also the power to define the specific medical-
care activities which are covered by such professions (Court of Justice judgment 
Solleveld and Others of 27 April 2006 C-443/04 and C-444/04, EU:C:2006:257, 
[...] paragraphs 29, 30, with further references). 
31 (bb) Accordingly, Paragraph 4(14)(a) UStG provides that services in the exercise 
of the profession of doctor, dentist, lay medical practitioner, physiotherapist, 
midwife or a similar healthcare profession are covered. 
32 (cc) Pursuant to the national case-law, for the undertakings that do not fall within 
one of the aforementioned professions, the required professional qualification may 
arise from legislation governing the profession. In addition, in accordance with the 
purpose of the provision, of relieving the turnover tax burden on social security 
institutions, it can in principle be assumed that [Or. 15] there is evidence of 
formal qualifications if the undertaking’s services via professional healthcare 
activities are generally financed by the social security institutions ([...] [citations 
for case-law of the BFH]). The bearing of costs by statutory health insurance 
funds is significant here if it has the nature of providing evidence of formal 
qualifications. Under national legislation, in individual cases, this can arise from 
the health insurance fund’s relations with the service providers pursuant to the 
Fourth Chapter of the SGB V, and therefore from Paragraph 69 ff. SGB V. Thus, 
for example, the inclusion of the services concerned in the catalogue of services of 
statutory health insurance funds pursuant to Paragraph 92 SGB V, the conclusion 
of a supply contract pursuant to Paragraph 111 SGB V, or the authorisation 
pursuant to Paragraph 124 SGB V are to be regarded as an indication of the 
existence of the required professional qualification ([...] [citations for case-law of 
the BFH]). The required evidence of professional qualifications can also arise 
from the bearing of costs pursuant to Paragraph 43 SGB V in connection with an 
overall agreement ([...] [citation for case-law of the BFH]). 
33 (c) Nurses and medical assistants who, for the most part, were also trained as 
health coaches and supported by specialist doctors in over one third of the cases 
were engaged in the present case. The costs were borne in full by statutory health 
insurance funds, as they were the contracting entities of the measures. 
34 In the Federal Republic of Germany, there is no legislation on the professional 
requirements for the provisions [Or. 16] of medical consultancy services by 
telephone. Only for patient tutorials have the health insurance fund associations 
stated at federal level, in Common Recommendations (Common 
Recommendations on funding and implementation of patient tutorials on the basis 
of Paragraph 43(1)(2) SGB V of 2 December 2013 in the version of 8 February 
REQUEST FOR A PRELIMINARY RULING OF 18. 9. 2018 — CASE C-48/19 
 
10  
2017), which are not binding in nature, that the tutorial programme must be 
carried out by a qualified tutorial team composed of interdisciplinary members 
with the participation of a doctor specialising in the symptom concerned. For the 
members of the team who are not doctors, a vocational qualification in the field of 
activity together with a symptom-specific additional qualification, as well as 
several years of professional experience working with chronic illnesses and 
psychological and pedagogical skills corresponding to the symptom and target 
group, must be demonstrated. The vocational qualifications cited as ‘standard 
examples’ in the recommendations do not include nurses or medical assistants. It 
should be noted here, however, that only ‘standard examples’ are cited, meaning 
that the catalogue cannot be regarded as exhaustive. 
35 (d) It is questionable whether the qualification requirements of medical and 
paramedical professions within the meaning of Article 132(1)(c) of Directive 
2006/112/EC as defined by the Member States for conventional medical care also 
apply to medical care that is provided entirely without any personal contact (for 
example over the telephone or via the internet), or whether additional 
requirements are necessary in that respect — for example for services in the area 
of telemedicine. In this regard, it appears to be relevant that the discretion of the 
Member States with regard to the professional qualification provision is limited by 
the fact not all medical care should fall within the scope of the [Or. 17] exemption 
from VAT, the latter concerning only that of sufficient quality having regard to 
the professional training of the providers (Court of Justice judgment Solleveld and 
Others, EU:C:2006:257, [...] paragraph 37; [...] [citation for case-law of the 
BFH]). 
36 3. Both questions referred are relevant. If question 1 is answered in the negative, 
the healthcare hotline services are taxable. If it is answered in the affirmative, 
question 2 becomes relevant. Irrespective of this, question 2 is relevant to the 
patient support programme, as it unquestionably involves the provision of medical 
care. It could potentially also be the case that only the turnover in respect of which 
a doctor is consulted is exempt from tax. 
37 4. The legal basis for the reference to the Court of Justice is Article 267(3) of the 
TFEU. 
38 [...] [stay of proceedings] 
39 [...] 
[...] [Signatures]