Opinion of the Advocate General — ECLI:EU:C:2020:855
Date: 2020-10-22
Language of the case: Portuguese
Subject matter: Taxation;Value added tax
Procedure: Reference for a preliminary ruling
Origin: Portugal

Summary C-581/19 — 1 
Case C-581/19 
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:  
30 July 2019 
Referring court:  
Tribunal Arbitral Tributário (Centro de Arbitragem 
Administrativa — CAAD) (Portugal) 
Date of the order for reference:  
22 July 2019 
Applicant:  
FRENETIKEXITO — UNIPESSOAL  
Defendant:  
Autoridade Tributária e Aduaneira (Tax and Customs Authority, 
Portugal) 
Subject matter of the main proceedings 
The proceedings concern whether the nutrition service supplied by the applicant is 
ancillary to its fitness service, comprising a single supply, or whether, on the 
contrary, they are independent distinct supplies. If it is found that the nutrition 
service supplied by the applicant is ancillary to the fitness service, that nutrition 
service will be treated for tax purposes in the same way as the fitness service and 
will therefore be subject to VAT. If, in contrast, it is found that the nutrition 
service is in fact an independent distinct supply, it will be treated for tax purposes 
as a provision of medical care in the exercise of the medical and paramedical 
professions, that is to say, it will be exempt from VAT. 
In that latter case (of an independent nutrition service), it will be necessary to 
examine whether, in order for the possible VAT exemption under Article 9(1) of 
the Código do Imposto sobre o Valor Acrescentado (Value Added Tax Code, 
‘CIVA’) to apply, the service must actually be supplied, or whether it is sufficient 
that it is merely made available. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-581/19 
 
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Subject matter and legal basis of the request for a preliminary ruling 
Interpretation of Articles 2(1)(c) and 132(1)(c) of Council Directive 2006/112/EC 
of 28 November 2006 on the common system of value added tax; Article 267 
TFEU. 
Questions to be referred 
1. Where, as occurs in this case, a company 
(a) carries on, principally, fitness and physical well-being activities and, 
on a secondary basis, human health activities, which include nutrition 
services, nutrition/dietary advice, fitness assessment services and 
massages; and 
(b) offers its customers plans that include only fitness services and plans 
that include nutrition services in addition to fitness services, 
for the purposes of Article 2(1)(c) of Directive 2006/112/EC of 28 November 
2006, must the human health activity, and the nutrition service in particular, be 
regarded as ancillary to the fitness and physical well-being activity, with the effect 
that the ancillary supply must be given the same tax treatment as the principal 
supply, or, on the contrary, must the human health activity, and the nutrition 
service in particular, be regarded as independent of and distinct from the fitness 
and physical well-being activity, with the effect that the tax treatment established 
for each of those activities will apply to that activity? 
2. For the purposes of applying the exemption under Article 132(1)(c) of 
Directive 2006/112/EC of 28 November 2006, must the services listed in 
that article actually be supplied, or is it sufficient in order for that exemption 
to apply that they are merely made available, so that use of those services 
depends solely on the wishes of the customer? 
Provisions of EU law relied upon 
Council Directive 2006/112/EC of 28 November 2006 on the common system of 
value added tax.  
‘Article 2 
1. The following transactions shall be subject to VAT: 
(a) … 
(b) … 
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(c) the supply of services for consideration within the territory of a Member 
State by a taxable person acting as such’. 
‘Article 132 
1. Member States shall exempt the following transactions: 
(a) … 
(b) … 
(c) the provision of medical care in the exercise of the medical and paramedical 
professions as defined by the Member State concerned’. 
Provisions of national law relied upon 
Value Added Tax Code (CIVA)  
‘Article 9 
Exemptions on internal transactions 
The following will be exempt from tax: 
(1) supplies of services made in the exercise of the professions of doctor, 
dentist, midwife, nurse and other paramedical professions’. 
Brief description of the facts and the main proceedings 
1 FRENETIKEXITO — UNIPESSOAL, a company having its registered office at 
Espinho, Portugal (‘the applicant’), applied for a tax arbitration tribunal to be set 
up and for arbitration proceedings, under Articles 2(1)(a) and 10(1)(a) of Decreto-
Lei n.° 10/2011, de 20 de janeiro (Regime Jurídico da Arbitragem em Matéria 
Tributária) (Decree Law No 10/2011 of 20 January 2011 (legal regime governing 
tax arbitration)) (‘RJAT’), seeking a declaration that the VAT assessments by the 
tax authority relating to the tax periods 201406T to 201512T together with the 
corresponding default interest, totalling EUR 13 253.05, be declared unlawful and, 
as a result, be annulled, and that the Autoridade Tributária (Portuguese Tax 
Authority, ‘AT’ or ‘the defendant’) be ordered to repay the sums paid, and also 
claimed default interest. 
2 The applicant is engaged in the management and operation of sports facilities, 
fitness and physical well-being activities; the retail and online sale of beauty, food 
and dietary products, in particular nutrition products, food supplements, water, 
clothing, ornaments and costume jewellery, merchandising products; human 
healthcare services, which include nutrition, nutrition advice, physical fitness 
assessment and massages. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-581/19 
 
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3 In 2014 and 2015 it supplied nutrition/dietary services, through a duly authorised 
and certified professional, at its premises, without charging VAT. 
4 The nutritionist/dietary adviser employed by the applicant was available to serve 
customers one day a week. 
5 The applicant registered with the Entidade Reguladora da Saúde (Portuguese 
Health Regulatory Authority) in August 2014, and that registration remained in 
place at least throughout 2015. 
6 The applicant offered plans that included fitness plans only and plans that 
included, in addition, nutrition/dietary monitoring, and it was for customers to 
choose the plan they wished and to decide whether to use all the services available 
under the plan chosen. 
7 Where a customer subscribed to the nutrition service, that service was charged for 
independently of whether or not the customer used it and of the number of 
consultations he or she made. 
8 Nutrition services could be purchased individually and separately from any other 
service, on payment of a given amount, which varied depending on whether or not 
the customer was a member of the applicant. 
9 In the invoices it issued the applicant specified the amounts corresponding to the 
fitness service and those corresponding to the nutrition/diet monitoring service. 
10 There is no correlation between the nutrition services charged for and the nutrition 
consultations. 
11 By email of 24 July 2017, the AT requested submission of the accounting 
documents before and after the 2014 and 2015 adjustments and the payment 
schedule for those years, relating to the applicant. Those documents were sent to 
the AT the same day. 
12 The AT had access to the applicant’s SAFT (Standard Audit File for Tax 
Purposes) for 2014 and 2015. 
13 On 25 October 2017, the applicant was informed that inspection proceedings had 
been commenced. 
14 The applicant was notified of the VAT assessments by the tax authority for the 
years 2014 and 2015 and the corresponding default interest, totalling 
EUR 13 253.05. 
15 The applicant did not pay the assessments by the tax authority referred to in the 
preceding paragraph within the period for voluntary payment, and the 
corresponding procedures to enforce collection under those assessments were 
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therefore commenced, in the course of which the applicant agreed to pay in 
instalments. 
16 The application to set up a tax arbitration tribunal and for arbitration proceedings 
was lodged on 9 October 2018. 
Principal arguments of the parties in the main proceedings 
17 The applicant submits the arguments set out in summary below. 
18 It carries on its activity in the field of Fitness/Health Club services and nutrition 
services. 
19 In 2014 and 2015 it supplied nutrition/dietary services, through a duly authorised 
and certified professional, at its premises, applying a VAT exemption. 
20 The fitness services and nutrition services supplied by the applicant are distinct 
and independent. 
21 The applicant offered plans that included fitness plans only and plans that 
included, in addition, nutrition monitoring. 
22 In the invoices it issued the applicant specified the amounts corresponding to the 
fitness service and those corresponding to the nutrition monitoring service. 
23 Although the AT commenced its inspections in July 2017, it did not inform the 
applicant that the inspection procedure had commenced until 25 October 2017. 
24 Failure to conclude the inspection procedure within 6 months amounts to an 
infringement of essential procedural requirements, and thereby invalidates all 
subsequent acts, including the contested assessments.  
25 The AT is acting contrary to Informação Vinculativa n.° 9215 (Binding 
Consultation Reply No 9215) of 19 August 2015, thereby infringing the principles 
of cooperation, substantive justice, legal certainty, equality and the rule of law. 
26 The tax inspection report proposing the contested assessments is vitiated by a 
failure to state reasons. 
27 The defendant filed a defence in which, in summary, it advanced the following 
arguments. 
28 An analysis of the evidence submitted by the applicant indicates that the customer 
pays for the nutrition service even where he or she does not use it, which means 
that the nutritional monitoring is a service ancillary to engaging in physical 
exercise. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-581/19 
 
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29 It can be inferred therefore that the nutritional monitoring service is ancillary in 
view of the small number of nutrition consultations compared with the amount 
charged for it. 
30 The applicant has not demonstrated that any medical services are actually 
supplied. 
31 Since the supply of the nutrition service is ancillary to the supply of the fitness 
service, the tax treatment of that principal supply should be applied to the nutrition 
service. 
32 The applicant artificially breaks down the price, charging VAT on part of it and 
leaving the other part exempt from that tax. 
33 Neither the tax inspection report nor the contested tax assessments are vitiated by 
a failure to state reasons. 
34 The defendant claims that the application for arbitration proceedings should be 
dismissed or, if it is granted, that the two questions raised should be referred to the 
Court of Justice, in order to determine: (i) whether the invoicing method used by 
the applicant constitutes an artificial breakdown of the supply of services and (ii) 
whether the VAT exemption established for medical activities can be applied to 
nutrition advice services that were never supplied. 
Brief description of the grounds for the request for a preliminary ruling 
The main proceedings concern application of the VAT exemption under 
Article 9(1) CIVA to the nutrition service supplied by the applicant. 
In order to establish whether that exemption can be applied to the nutrition service 
at issue it is necessary: 
(i) to determine whether the nutrition service supplied by the applicant is 
ancillary to the fitness service, with the effect that they both comprise 
a single supply or whether, on the contrary, they are independent 
distinct supplies, and 
(ii) to determine whether, in order for the VAT exemption under 
Article 9(1) CIVA to apply, the nutrition service must actually be 
provided, or whether it is sufficient that it is merely made available. 
35 The provisions of Directive 2006/112, particularly Articles 2(1)(c) and 132(1)(c), 
must be borne in mind in that respect. 
36 If it is found that the nutrition service supplied by the applicant is ancillary to the 
fitness service, that nutrition service will be treated for tax purposes in the same 
way as the fitness service and will therefore be subject to VAT. 
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37 If, in contrast, it is found that the nutrition service is in fact an independent 
distinct supply, it will be treated for tax purposes as a provision of medical care in 
the exercise of the medical and paramedical professions, that is to say, it will be 
exempt from VAT. 
38 In that regard, as the defendant states, the case-law of the Court of Justice 
indicates that, where a transaction comprises a bundle of elements and acts, regard 
must be had to all the circumstances in which the transaction in question takes 
place in order to determine, firstly, if there were two or more distinct supplies or 
one single supply (judgment of 27 October 2005, Levob Verzekeringen and OV 
Bank, C-41/04, EU:C:2005:649). 
39 As regards whether the nutrition service is ancillary to or independent of the 
fitness service, where the nutrition service is supplied at a gym, the referring court 
is of the view, notwithstanding the arguments advanced by the applicant and the 
defendant, that there is no Court of Justice case-law that can be regarded as 
uniform, since there is case-law supporting both positions, as emerges, moreover, 
even from the claims submitted by the parties. 
40 Furthermore, if the nutrition service is found to be independent and, accordingly, 
not to be treated in the same way for tax purposes as the fitness service, it is 
necessary to examine whether, in order for the possible VAT exemption under 
Article 9(1) CIVA to apply, the service must actually be supplied, or whether it is 
sufficient that it is merely made available. 
41 Here again, the referring court believes that the Court of Justice case-law is not 
uniform in terms of favouring one interpretation or the other.