Opinion of the Court — ECLI:EU:C:2022:485
Date: 2022-06-16
Language of the case: Bulgarian;Czech;Danish;German;Greek;English;Estonian;Finnish;French;Irish;Croatian;Hungarian;Italian;Latvian;Lithuanian;Maltese;Dutch;Polish;Portuguese;Romanian;Slovak;Slovenian;Spanish;Swedish
Court formation: Fourth Chamber
Subject matter: Provisions governing the Institutions
Procedure: Request for an Opinion - inadmissible

Summary C-1/20 — 1 
Case C-1/20 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
3 January 2020 
Referring court: 
Verwaltungsgerichtshof (Austria) 
Date of the decision to refer: 
11 December 2019 
Appellant in the appeal on a point of law: 
B 
Respondent authority: 
Finanzamt Wien 9/18/19 Klosterneuburg (Vienna Tax Office 
9/18/19 Klosterneuburg)  
  
Subject matter of the case in the main proceedings 
VAT liability for (general) services provided by a lawyer acting as a guardian  
Question referred for a preliminary ruling 
Is Article 132(1)(g) of Council Directive 2006/112/EC of 28 November 2006 on 
the common system of value added tax to be interpreted as meaning that the 
services of a lawyer provided in his or her capacity as a court-appointed 
guardian — in so far as those services are not services typically provided by a 
lawyer — are exempt from VAT? 
Provisions of EU law cited 
Council Directive 2006/112/EC of 28 November 2006 on the common system of 
value added tax: Article 132(1)(g), Article 133(a), and Article 134 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-1/20 
 
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National legislation cited 
Umsatzsteuergesetz 1994 (Law on turnover tax 1994; ‘the UStG’) in the version 
BGBl (Federal Law Gazette) I No 112/2012: Paragraph 6(1)(7), (18) and (25) ((7) 
and (18) transposing Article 13A(1)(g) of Sixth Council Directive 77/388/EEC of 
17 May 1977) 
Allgemeines bürgerliches Gesetzbuch (Austrian Civil Code; ‘the ABGB’) in the 
version BGBl (Federal Law Gazette) I No 15/2013: Paragraph 268(1) and (3), 
Paragraphs 274(2) and 275(1), Paragraph 276, Paragraph 278(1) and (3), 
Paragraphs 279 and 282 
Bundesgesetz über das gerichtliche Verfahren in Rechtsangelegenheiten außer 
Streitsachen (Außerstreitgesetz) (Federal Law on judicial proceedings in non-
contentious matters) in the version BGBl (Federal Law Gazette) I No 92/2006: 
Paragraph 130 
Court of Justice case-law relied on  
Judgment of 28 July 2016, Ordre des barreaux francophones et germanophone 
and Others, C-543/14  
Judgment of 10 September 2002, Kügler, C-141/00  
Judgment of 26 May 2005, Kingscrest Associates and Montecello, C-498/03  
Judgment of 12 March 2015, ‘go fair’ Zeitarbeit, C-594/13  
Judgment of 9 February 2006, Stichting Kinderopvang Enschede, C-415/04  
Judgment of 21 January 2016, Les Jardins de Jouvence, C-335/14  
Judgment of 11 August 1995, Bulthuis-Griffioen, C-453/93  
Judgment of 7 September 1999, Gregg, C-216/97  
Judgment of 17 June 2010, Commission v French Republic, C-492/08  
Judgment of 10 June 2010, CopyGene, C-262/08  
Judgment of 4 October 2018, Commission v French Republic, C-416/17  
Brief summary of the facts and procedure 
1 The appellant on a point of law is a lawyer and frequently appointed by the courts 
as a guardian for persons with a mental illness or an intellectual disability. The 
Tax Office treated the turnover from his activities as guardian as taxable. The 
appellant on a point of law brought an action against the respective decision of the 
Tax Office concerning turnover tax for 2014 before the Bundesfinanzgericht 
(Federal Finance Court, Austria), which dismissed that action.  
2 In that respect, the Bundesfinanzgericht (Federal Finance Court, Austria) stated, in 
essence, that the appellant on a point of law practices as a lawyer. It noted that, in 
the context of his professional activity, he was also appointed by the courts as a 
guardian, and received remuneration for that activity pursuant to Paragraph 276(1) 
of the ABGB. It stated, however, that the professional category of lawyers is not 
FINANZAMT WIEN 9/18/19 KLOSTERNEUBURG 
 
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to be regarded as a body recognised as being devoted to social wellbeing 
(judgment of 28 July 2016, Ordre des barreaux francophones et germanophone 
and Others, C-543/14). Therefore, according to that court, the turnover of the 
appellant on a point of law from his activity as guardian is not exempt from 
turnover tax. In so far as an infringement of the principle of equal treatment is 
alleged, it should be noted, according to the Bundesfinanzgericht (Federal Finance 
Court, Austria), that an association acting as a guardian is exempt from turnover 
tax pursuant to Paragraph 6(1)(25) of the UStG 1994. Associations, however — 
unlike lawyers — do not aim to make a profit. As a result, there are also no 
comparable services to be treated in the same manner. 
3 The lawyer brought an appeal on a point of law before the referring court 
(Verwaltungsgerichtshof (Supreme Administrative Court, Austria)) in respect of 
that judgment of the Bundesfinanzgericht (Federal Finance Court, Austria). 
Principal arguments of the parties in the main proceedings 
4 The appellant on a point of law submits — which is not disputed by the Tax 
Office from a factual perspective — that for many years, he has been working, as 
part of his activity as a lawyer, almost exclusively as a court-appointed guardian. 
In that area, too, he has to perform activities typical for a lawyer for the benefit of 
the persons concerned but such activities are of an extremely limited scope. He 
claims that he no longer works on any matters that he freely chooses himself. His 
remaining activity as guardian consists of social security work (care) for the 
persons entrusted to him by the courts. A guardian is appointed for persons with a 
mental illness or an intellectual disability, who are, as a result of that illness or 
disability, unable to manage all or some of their affairs, and are therefore at risk of 
being adversely affected. The activity of a guardian is intended to preserve social 
security. According to the appellant on a point of law, a correct transposition of 
Article 132(1)(g) of Directive 2006/112/EC would mean that the guardian’s 
turnover which is connected to his care and representation activities is exempt 
from turnover tax. 
5 In the appeal on a point of law, the appellant specifies that, in order to meet the 
requirements of acting as a guardian, he employed social workers and trained his 
staff in social work. He also states that he has a wide external network, that is to 
say, several persons who provide visitation services. He describes his services as 
activities with which lawyers are not usually instructed, even if some of the 
activities have a legal aspect. These activities include making applications for 
various benefits or exemptions; ‘organising’ social services, medical appointments 
and companions for those appointments; as well as (organising) deep cleaning of 
dirty homes, substitute accommodation, the provision of builders, and similar 
activities. 
6 It is common ground in the proceedings that services provided by the appellant on 
a point of law as a lawyer as well as those services provided in the capacity of 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-1/20 
 
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guardian for persons with disabilities, using his specific professional knowledge, 
and for which he receives remuneration pursuant to Paragraph 276(2) of the 
ABGB, are subject to turnover tax. 
7 However, the appellant on a point of law submits — contrary to the view of the 
Tax Office and the Bundesfinanzgericht (Federal Finance Court, Austria) — that 
those services which he provides as a court-appointed guardian and for which he 
is entitled to ‘remuneration’ within the meaning of Paragraph 276(1) of the ABGB 
are to be treated as exempt from turnover tax. In that regard, however, it is equally 
undisputed that those services — on the basis of national (Austrian) law only — 
are subject to turnover tax, as national law does not provide for any exemption in 
that respect. The appellant on a point of law claims that those services are exempt 
from turnover tax on the basis of Article 132(1)(g) of Directive 2006/112/EC 
which is directly applicable (see, once again — concerning the precursor 
Article 13A(1)(g) of the Sixth Directive — judgment of the Court of Justice of 
10 September 2002 in Kügler, C-141/00).  
Summary of the reasons for the reference for a preliminary ruling 
8 The decision of the Verwaltungsgerichtshof (Supreme Administrative Court, 
Austria) depends on whether EU law provides for a tax exemption for the 
aforementioned services. 
9 The basic idea underlying the law on guardianship is to provide a person with a 
mental illness or an intellectual disability who, as a result of that disability, is not 
sufficiently able to manage his or her affairs independently, with a guardian as a 
legal representative in respect of the areas affected by the deficit. 
10 The (civil-law) case-law concerning the previous legal situation, which applies to 
the present proceedings, does not allow for turnover tax to be charged in addition 
to the remuneration; this is, in essence, based on the fact that the upper limits laid 
down as a percentage in Paragraph 276(1) of the ABGB represent the maximum 
amount to be charged that may not be exceeded by any additional charging of 
turnover tax. In future (pursuant to the new — amended with BGBl (Federal Law 
Gazette) I No 59/2017 — legal situation, which does not apply to the present 
proceedings), the remuneration should expressly be plus turnover tax, where 
appropriate. Whether turnover tax is to be paid is, however, governed by the 
respective provisions regarding turnover tax. 
11 According to the case-law of the Court of Justice, to be eligible for the tax 
exemption of Article 13A(1)(g) of the Sixth Directive (in its previous wording), 
two requirements must be satisfied: First, the supplies of services must be 
connected to welfare or social security work; secondly, such supplies must be 
made by bodies governed by public law or other organisations recognised by the 
Member State concerned as essentially charitable (see judgment of 26 May 2005, 
Kingscrest Associates and Montecello, C-498/03, paragraph 34). These two 
requirements also apply to the provision relevant to the present case, namely 
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Article 132(1)(g) of Directive 2006/112/EC (see judgment of 12 March 2015, ‘go 
fair’ Zeitarbeit, C-594/13, paragraph 18). 
(a) Services that are connected to welfare or social security work: 
12 In order for a guardian to be appointed, an adult must have a mental illness or an 
intellectual disability and be unable to manage his or her own affairs without 
running the risk of being adversely affected. The guardian is in general under an 
obligation to take care of that person and has to ensure, for instance, that the 
disabled person receives the required medical care and social security assistance. 
In general, they should meet at least once a month. The remuneration to be 
determined by the court depends in particular on the income and assets of the 
disabled person. The guardian’s activity is subject to review by the court. 
13 According to the case-law of the Verfassungsgerichtshof (Constitutional Court, 
Austria) (judgment of 6 October 2011, G 38/11, inter alia), the obligation on the 
part of a lawyer to assume the activity of a guardian is a civic obligation derived 
from society’s responsibility for particularly vulnerable persons for the purpose of 
Article 4(3)(d) of the European Convention on Human Rights (see also Article 5 
of the Charter of Fundamental Rights of the European Union).  
14 In addition to his professional legal activities, the guardian has to carry on specific 
organisational activities, such as finding appropriate care and nursing services. In 
so far as the guardian’s activity in that respect is to be considered as (mere) 
intermediary activity relating to welfare or social security work services, this does 
not seem to preclude a tax exemption for those services (see judgment of the 
Court of Justice of 9 February 2006, Stichting Kinderopvang Enschede, 
C-415/04). 
15 By treating certain supplies of services in the public interest in the social sector 
more favourably for the purposes of VAT, that exemption is intended to reduce 
the cost of those services and to make them more accessible to the individuals 
who may benefit from them (judgment of the Court of Justice of 21 January 2016, 
Les Jardins de Jouvence, C-335/14, paragraph 41). In view of the aforementioned 
case-law of the Austrian civil-law courts, according to which turnover tax cannot 
be charged in addition to the remuneration of the guardian (and in that manner 
passed on the disabled person), an exemption is of course not necessary for 
achieving that aim, in accordance with the legal situation still applicable in the 
present case (any potential turnover tax instead reduces the remuneration of the 
lawyer acting as an appointed guardian).  
(b) Body recognised by the Member State as essentially being devoted to social 
wellbeing: 
16 The Court of Justice held, in respect of the precursor provision (Article 13A(1)(g) 
of Sixth Council Directive 77/388/EEC of 17 May 1977), that, in view of the 
reference to the concept of ‘body’ or ‘organisation’, that exemption provision can 
only be relied on by legal persons. Natural persons are not covered by that 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-1/20 
 
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provision (see judgment of the Court of Justice of 11 August 1995, Bulthuis-
Griffioen, C-453/93, paragraph 20 et seq.). In its judgment of 7 September 1999, 
Gregg, C-216/97, however, the Court of Justice expressly departed from that view 
and noted that the term ‘organisation’ is in principle sufficiently broad to include 
natural persons as well. It stated that it is true that the term ‘organisation’ suggests 
the existence of an individualised entity performing a particular function. Those 
conditions are, however, satisfied not only by legal persons but also by one or 
more natural persons running a business (paragraph 15 et seq.). 
17 This term also encompasses private profit-making entities. The Member States are 
authorised, but not obliged, to restrict entitlement to the tax exemption to bodies 
(other than public-law bodies) which do not systematically seek to make a profit 
(see judgment of the Court of Justice of 26 May 2005, Kingscrest Associates and 
Montecello, C-498/03, paragraphs 35 and 38). 
18 According to the case-law of the Court of Justice, it is for the national authorities 
to determine, pursuant to EU law and subject to review by the national courts, 
which organisations are to be recognised as charitable. The aspects that may be 
taken into account in that respect can be the existence of specific provisions; the 
public interest nature of the activities; the fact that other taxable persons carrying 
on the same activities already enjoy a similar tax exemption; and the fact that the 
costs of the services provided may be met by health insurance schemes or other 
social security bodies (see judgment of the Court of Justice of 15 November 2012, 
Zimmermann, C-174/11, paragraph 31; judgment of the Court of Justice of 
21 January 2016, Les Jardins de Jouvence, C-335/14, paragraph 35). 
19 According to the current state of proceedings, it can be stated that guardianship in 
Austria is governed by specific provisions. It is clear and undisputed that 
guardianship activity is linked to the public interest. Other taxable persons, that is 
to say associations that are appointed as guardians, are generally not profit-
seeking; the Bundesfinanzgericht (Federal Finance Court, Austria) concludes from 
that, in the decision under appeal, that (comparable) services provided by an 
association are to be treated as exempt from turnover tax. Generally, the costs are 
not covered by health insurance schemes or social security bodies; however, the 
Ministry of Justice covered a part of the expenses of those associations for 
(comparable) activities, financing them from public funds. 
20 On the whole, an overall assessment of those circumstances could lead to the 
conclusion that a lawyer appointed by the court as a guardian is a body that is 
recognised by the Member State as a body essentially devoted to social wellbeing. 
21 However, the Court of Justice held that, in the light of its overall objectives and 
the fact that any engagement in welfare work is not permanent, the professional 
category of lawyers as such cannot be regarded as devoted to social wellbeing 
(judgment of 28 July 2016, Ordre des barreaux francophones et germanophone 
and Others, C-543/14, paragraph 62, referring to judgment of 17 June 2010, 
Commission v France, C-492/08, paragraphs 45 and 46). Services rendered by 
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lawyers under the national legal aid scheme in question are not exempt from VAT 
under Article 132(1)(g) of Directive 2006/112/EC (judgment of 28 July 2016, 
paragraph 65). 
22 It appears doubtful whether this generally excludes all activities of all lawyers 
from that exemption. 
23 First, it must be noted that, pursuant to Paragraph 279(4) of the ABGB, a lawyer 
or notary is to be appointed as a guardian in particular where managing the affairs 
of the ward in question requires predominantly knowledge of the law. From this, 
however, it can merely be inferred that in such cases, a lawyer or notary is to be 
appointed from the outset. That provision, however, does not preclude the 
appointment of a lawyer or notary as guardian where managing the affairs of the 
ward does not require predominantly knowledge of the law. Lawyers or notaries 
are to be appointed as guardians in particular where other persons (related persons 
or a guardian association that can only be appointed with its consent) are not 
available. 
24 The maximum number of guardianships to be assumed (in general up to 5; for 
lawyers or notaries up to 25), laid down in Paragraph 279(5) of the ABGB in the 
form of a rebuttable presumption, is based, in accordance with the legislature's 
intention, on the fact that guardianship — except in the case of legal professionals 
and employees of associations — should not be carried out on a commercial basis. 
Nevertheless, specialised legal professionals in part assume hundreds of 
guardianships. 
25 However, it must above all be noted that the guardianship activity in the present 
case — despite the fact that a lawyer was appointed as guardian — is 
predominantly not such as is typically carried on by lawyer. As stated above, these 
are activities with which a lawyer is not usually instructed, even where individual 
activities, such as the making of an application for benefits, have a legal aspect. 
Moreover, these are above all organisational activities to ensure (actual) care and 
support. That activity is — unlike the legal aid in the case leading to the judgment 
in C-543/14 — also to be regarded as permanent: Appointment as a guardian is, 
pursuant to Paragraph 278 of the ABGB, in itself indefinite: the court has to 
review, at intervals not exceeding 5 years, whether the guardianship is to be 
terminated or amended. 
26 However, in so far as the services are such as are typically provided by a lawyer 
(such as the drafting of a contract, with a third person, concerning the assets of the 
disabled person), for which the lawyer is entitled to appropriate remuneration 
(Paragraph 276(2) of the ABGB), there is — as stated above — without doubt tax 
liability. 
27 As regards the required uniform interpretation of the exemption provisions (see, 
for instance, judgment of the Court of Justice of 10 June 2010, CopyGene, 
C-262/08, paragraph 24), it must be noted that, even where the Member States 
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have a discretion as regards the ‘recognition’ of a body (see, once again, judgment 
of the Court of Justice, CopyGene, paragraph 66), the German Bundesfinanzhof 
(Federal Finance Court, Germany) reached the conclusion, in respect of the 
comparable activity of a professional custodian for the purpose of Paragraph 1896 
of the Bürgerliches Gesetzbuch (German Civil Code), that that professional 
custodian can rely on the tax break under Article 132(1)(g) of Directive 
2006/112/EC, unless the services in question for which a lawyer acting as a 
custodian is remunerated relate to a legal activity carried on within the context of 
the care provided (judgment of the Bundesfinanzhof (Federal Finance Court, 
Germany) of 25 April 2013, V R 7/11). That case-law was taken by the German 
legislature as the basis for a special exemption for those services in 
Paragraph 4(16)(k) of the German UStG. 
28 Overall, however, the correct interpretation of EU law in the light of the (later) 
judgment of the Court of Justice in Ordre des barreaux francophones et 
germanophone and Others does not appear to be so obvious as to leave no scope 
for any reasonable doubt (see judgment of the Court of Justice of 4 October 2018, 
Commission v French Republic, C-416/17, paragraph 110).