Judgment;Summary — ECLI:EU:C:2021:873
Date: 2021-10-21
Language of the case: German
Court formation: Ninth Chamber
Subject matter: Taxation;Value added tax
Procedure: Reference for a preliminary ruling
Origin: Germany

Translation  C-373/19 — 1 
Case C-373/19 
Request for a preliminary ruling 
Date lodged: 
13 May 2019 
Referring court: 
Bundesfinanzhof (Germany) 
Date of the decision to refer: 
27 March 2019 
Appellant in the appeal on a point of law: 
Finanzamt München III 
Respondent in the appeal on a point of law: 
Dubrovin & Tröger GbR — Aquatics 
  
[…] 
BUNDESFINANZHOF (FEDERAL FINANCE COURT) 
[…] 
ORDER 
In the case of 
Finanzamt München (Munich Tax Office) […] III., […] 
defendant and appellant in the appeal on a point of law, 
v 
Dubrovin &. Tröger GbR — Aquatics, […] Munich, 
applicant and respondent in the appeal on a point of law, 
[…] 
EN 
REQUEST FOR A PRELIMINARY RULING OF 27. 3. 2019 — CASE C-373/19 
 
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concerning  VAT from 2007 to 2011 
the 5th Chamber 
[…] 
ordered as follows on 27 March 2019: 
I. The following questions are referred to the Court of Justice of the European 
Union for a preliminary ruling: [Or. 2] 
1. Does the concept of school or university education within the meaning of 
Article 132(1)(i) and (j) of Council Directive 2006/112/EC of 28 November 2006 
on the common system of value added tax also include swimming tuition? 
2. Can the recognition of an organisation within the meaning of 
Article 132(1)(i) of Council Directive 2006/112/EC of 28 November 2006 on the 
common system of value added tax as an organisation having objects similar to 
those of bodies governed by public law that have as their aim the provision of 
children’s or young people’s education, school or university education, vocational 
training or retraining result from the fact that the tuition provided by that 
organisation enables participants to learn a fundamental ability (in this case: 
swimming)? 
3. If the second question is answered in the negative: Does the tax exemption 
pursuant to Article 132(1)(j) of Council Directive 2006/112/EC of 28 November 
2006 on the common system of value added tax require that the taxable person be 
an individual trader? 
II. The proceedings are stayed until the Court of Justice of the European Union 
has given a ruling. [Or. 3] 
G r o u n d s 
I. 
The applicant and respondent in the appeal on a point of law (‘applicant’), a 
Gesellschaft bürgerlichen Rechts (civil-law partnership, ‘GbR’) set up by X and 
Y, operates a swimming school. 
The GbR essentially ran courses for children (‘Goldfish’, ‘Seahorse’ and 
‘Tadpole’), which were paid for by the course participants or their parents. In the 
‘Tadpole’ swimming course, children from the age of four were taught the basics 
of breaststroke and backstroke. In the two more advanced courses, ‘Seahorse’ and 
‘Goldfish’, the previously acquired basics and techniques of swimming were 
deepened. 
The applicant considered its services to be exempt from VAT. 
DUBROVIN & TRÖGER — AQUATICS 
 
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Following a special VAT audit, the defendant and appellant in the appeal on a 
point of law (the Tax Office) proceeded on the basis that the applicant’s services 
were not exempt from tax under national law, either under Paragraph 4(21) or 
under Paragraph 4(22) of the Umsatzsteuergesetz (Law on turnover tax, ‘the 
UStG’). 
Annual VAT assessment notices of 22 November 2011 were issued accordingly 
for the years 2007 to 2009, according to which the applicant’s services were 
treated as being subject to VAT at the standard tax rate. The Tax Office also 
issued amended annual VAT assessment notices for the years 2010 and 2011 on 
3 September 2012 and 12 August 2013. The objection to those notices was 
unsuccessful. 
During the proceedings before the Finanzgericht (Finance Court), amended annual 
VAT assessment notices for the years 2007 to 2011 were issued on 21 December 
2017, which became the subject of the proceedings before the Finance Court [Or. 
4] pursuant to Paragraph 68 of the Finanzgerichtsordnung (Rules of Procedure of 
the finance courts, ‘the FGO’). The Tax Office maintained its view that the 
services were subject to tax, but now also took a right of deduction into account. 
The Finance Court upheld the action. According to its judgment […], although the 
applicant’s services were not exempt from tax under national law, they were 
exempt from tax pursuant to Article 132(1)(j) of Council Directive 2006/112/EC 
of 28 November 2006 on the common system of value added tax (‘the VAT 
Directive’), as interpreted by the Court of Justice of the European Union (‘the 
CJEU’) and the Federal Finance Court (‘the BFH’). The teaching of fundamental 
swimming techniques constituted school education. In addition, Article 132(1)(j) 
of the VAT Directive was applicable not only to individual traders, but also to a 
GbR. 
The Tax Office challenges this by its appeal on a point of law, in which it asserts 
that the applicant’s services were not exempt from tax under EU law either, as the 
applicant was not a private teacher. The applicant opposes this argument. 
II. 
[…] 
1. Legal framework 
a) EU law 
Pursuant to Article 132(1) of the VAT Directive, the Member States are to exempt 
the following transactions: [Or. 5] 
REQUEST FOR A PRELIMINARY RULING OF 27. 3. 2019 — CASE C-373/19 
 
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‘(i) the provision of children’s or young people’s education, school or university 
education, vocational training or retraining, including the supply of services and 
of goods closely related thereto, by bodies governed by public law having such as 
their aim or by other organisations recognised by the Member State concerned as 
having similar objects; 
(j) tuition given privately by teachers and covering school or university 
education;’. 
b) National law 
Under Paragraph 4(21) UStG, the following transactions that fall within the scope 
of Paragraph 1(1)(1) of the UStG are exempt from tax: 
‘(a) the services of private schools and other general education or vocational 
training organisations directly serving the purpose of schooling and education, 
(aa) where they are approved at federal level as alternative schools in accordance 
with Article 7(4) of the Grundgesetz (Basic Law) or are permitted under the law 
of the Land, or  
(bb) where the competent authority of the Land certifies that they provide due 
preparation for a profession or for an examination to be taken before a legal 
person governed by public law. 
(b) the tuition services of independent teachers directly serving the purpose of 
schooling and education 
(aa) for universities within the meaning of Paragraphs 1 and 70 of the 
Hochschulrahmengesetz (Framework law on higher education) and public general 
education or vocational training schools, or 
(bb) for private schools and other general education or vocational training 
organisations, provided they satisfy the requirements set out under letter (a)’. 
Pursuant to Paragraph 4(22) UStG, the following are also exempt from tax: 
‘(a) lectures, courses and other activities of an academic or didactic nature 
provided by legal persons governed by public law, academies of administration or 
economics, adult education centres or bodies which serve the public good or the 
aims of a professional association, provided that the income is primarily used to 
cover costs, [Or. 6] 
(b) other cultural and sporting events organised by the commercial operators 
referred to in letter (a), provided that the remuneration takes the form of 
participation fees;’. 
DUBROVIN & TRÖGER — AQUATICS 
 
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2. First question referred 
a) Swimming tuition as tuition 
The Chamber takes the view that tuition in which the intention is for participants 
to learn how to swim constitutes tuition within the meaning of Article 132(1)(i) 
and (j) of the VAT Directive. The tuition provided by the applicant enables 
participants to learn a fundamental ability which every human being should 
have — in particular for dealing with emergency situations when coming into 
contact with water. It is not training of a recreational nature. Accordingly, the 
Chamber has already found that swimming tuition provided by individual traders 
is exempt from tax on the basis of Article 132(1)(j) of the VAT Directive […]. 
b) Significance of the case-law of the CJEU 
The Chamber takes the view that this is not precluded by the judgment of the 
Court of Justice of 14 March 2019, A & G Fahrschul-Akademie (C-449/17, 
EU:C:2019:202). The reason for this is that, according to that judgment, ‘the 
concept of “school or university education” for the purposes of the VAT system 
refers generally to an integrated system for the transfer of knowledge and skills 
covering a wide and diversified set of subjects, and to the furthering and 
development of that knowledge and those skills by the pupils and students in the 
course of their progress and their specialisation in the various constituent stages of 
that system’(judgment of the Court of Justice in A & G [Or. 7] Fahrschul-
Akademie GmbH, EU:C:2019:202, paragraph 26). In this respect, it should be 
noted in the present case that the individual swimming courses tie in with one 
another and build on each other. 
Nor can the contrary be inferred from the fact ‘that, even if it covers a range of 
practical and theoretical knowledge, driving tuition provided in a driving 
school … nevertheless remains specialised tuition which does not amount, in 
itself, to the transfer of knowledge and skills covering a wide and diversified set 
of subjects or to their furthering and development which is characteristic of school 
or university education’ (judgment of the Court of Justice in A & G Fahrschul-
Akademie GmbH, EU:C:2019:202, paragraph 29). The present case differs from 
the situation in that case because there is a clear public interest in people learning 
the fundamental skill of swimming, and this certainly cannot be said to be the case 
for ‘acquiring driving licences for vehicles in categories B and C1 referred to in 
Article 4(4) of Directive 2006/126’ (judgment of the Court of Justice in A & G 
Fahrschul-Akademie GmbH, EU:C:2019:202, paragraph 30). In addition, it should 
be noted with regard to the exemption for tuition given privately by teachers 
pursuant to Article 132(1)(j) of the VAT Directive that the activity of such 
teachers is often specialised in individual areas of instruction, as in the case of 
private tutors, for example. 
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3. Second question referred 
In its previous case-law, the Court of Justice has expressed its view on the 
requirements for recognition under Article 132(1)(g) of the VAT Directive in the 
area of social welfare. According to that case-law, the aspects relevant to 
recognition include the existence of specific provisions, be they national or 
regional, legislative or administrative, [Or. 8] or tax or social security provisions; 
the public interest nature of the activities of the taxable person concerned; the fact 
that other taxable persons carrying on the same activities already enjoy similar 
recognition; and the fact that the costs of the supplies in question may be largely 
met by health insurance schemes or other social security bodies (judgment of the 
Court of Justice of 15 November 2012, Zimmermann, C-174/11, EU:C: 2012:716, 
paragraph 31). 
On the other hand, the Court of Justice has not expressed its view on the question 
of what criteria are relevant for the purpose of recognition under Article 132(1)(i) 
of the VAT Directive in its previous case-law. This raises the question to be 
answered by the Court of Justice as to whether criteria that are the same as or 
comparable to those for Article 132(1)(g) of the VAT Directive are applicable 
here, in line with the Zimmermann judgment of the Court of Justice 
(EU:C:2012:716). The adjudicating Chamber is inclined to transpose, as a matter 
of principle, the case-law on trader-related recognition in the area of social 
welfare to recognition in the area of education […]. 
Accordingly, recognition of the applicant in the present case could arise from the 
public interest that is associated with its activities. The aim of the tuition provided 
by it is for participants to learn a fundamental ability which every human being 
should have — in particular for dealing with emergency situations when coming 
into contact with water. [Or. 9] 
4. The third question referred 
a) Case-law to date 
The Chamber is unable to decide what requirements are to be imposed on the 
status of private teacher as a trader-related prerequisite for tax exemption pursuant 
to Article 132(1)(j) of the VAT Directive. The application of this provision has 
previously concerned taxable persons who were individual traders (see judgments 
of the Court of Justice of 14 June 2007, Haderer, C-445/05, EU:C:2007:344; of 
28 January 2010, Eulitz, C-473/08, EU:C:2010:47 […]). 
b) Possible interpretation 
Linguistically, the term ‘teacher’ suggests that a natural person is involved. 
However, the principle of fiscal neutrality could preclude economic operators 
DUBROVIN & TRÖGER — AQUATICS 
 
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carrying on the same activities from being treated differently as far as the levying 
of VAT is concerned (see, for example, judgments of the Court of Justice of 
10 September 2002, Kügler, C-141/00, EU:C:2002:473, headnote 1 and 
paragraph 30; of 26 May 2005, Kingscrest Associates Ltd. and Montecello Ltd., 
C-498/03, EU:C:2005:322, paragraph 41; see also judgment of the Court of 
Justice of 2 June 2016, Lajver, C-263/15, EU:C:2016:392). 
According to the principle of neutrality, it is not possible to see any objective 
justification why X and Y, if they provide swimming tuition themselves as 
individual traders, provide tax-exempt services, while the same services in the 
case [Or. 10] of tuition provided jointly in the legal form of a partnership (here: 
GbR) should be subject to tax. 
c) Other criteria 
In so far as the Court of Justice has proceeded on the basis that a private teacher 
must act on his own account and at his own risk (judgment of the Court of Justice, 
Haderer, EU:C:2007:344, paragraphs 30 and 31), the adjudicating Chamber 
points out that this condition is fulfilled in the present case. This is because the 
applicant acted on its own account and at its own risk. In addition, the specific 
content of the tuition provided by it was directly related to its qualifications. 
Moreover, the fact that teaching units may be given to several pupils at a time is 
no impediment to classification as a ‘private teacher’. This is because it is clear 
from the case-law that the provision of tuition to several persons at a time does not 
preclude the recognition of that activity as tuition provided privately (Haderer, 
C-445/05, EU:C:2007:344, paragraph 31). 
5. Relevance of the questions 
The questions referred are material to the decision. The applicant does not meet 
the requirements for exemption that exist under national law. Firstly, it is neither 
an alternative school nor does it have certification according to which it duly 
prepares participants for a profession or for an examination to be taken before a 
legal person governed by public law (Paragraph 4(21)(a) UStG). Nor does the 
applicant operate as a university, private school or other establishment within the 
meaning of Paragraph 4(21)(b) UStG. The [Or. 11] applicant is not a legal person 
governed by public law, an academy of administration or economics, an adult 
education centre or a body which serves the public good or the aims of a 
professional association within the meaning of Paragraph 4(22) UStG. 
6. The need for a preliminary ruling on the questions referred 
The necessity of the request for a preliminary ruling arises, firstly, from the fact 
that, in its A & G Fahrschul-Akademie judgment (EU:C:2019:202), the Court of 
REQUEST FOR A PRELIMINARY RULING OF 27. 3. 2019 — CASE C-373/19 
 
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Justice gave a restrictive interpretation of the concept of instruction, which could 
not be inferred from its previous case-law (Haderer judgment, EU:C:2007:344). 
Secondly, the Court of Justice did not answer a question from the adjudicating 
Chamber […] on the ground of irrelevance to the decision (A & G Fahrschul-
Akademie judgment (EU:C:2019:202). 
7. Legal basis of the reference 
The request is based on Article 267 of the Treaty on the Functioning of the 
European Union. [Or. 12] 
[…]