Judgment of the Court of 6 November 2003 in Case C-101/01 (Reference for a preliminary ruling from the Göta hovrätt): Bodil Lindqvist (Directive 95/46/EC — Scope — Publication of personal data on the internet — Place of publication — Definition of transfer of personal data to third countries — Freedom of expression — Compatibility with Directive 95/46 of greater protection for personal data under the national legislation of a Member State)
Date: 2004-01-10
Institutions: Court of Justice
Subjects: Internet, cross-frontier data flow, disclosure of information, interpretation of the law, personal data, protection of privacy

10.1.2004

EN

Official Journal of the European Union

C 7/3

JUDGMENT OF THE COURT

2.

(Fifth Chamber)

of 6 November 2003

in Case C-45/01 (Reference for a preliminary ruling from
the Bundesfinanzhof ): Christoph-Dornier-Stiftung für
Klinische Psychologie v Finanzamt Gießen (1)

for

the purposes

of
Recognition of an establishment
Article 13A(1)(b) of the Sixth Directive 77/388 does not
presuppose a formal recognition procedure; nor must such
recognition necessarily derive from national tax law provisions.
Where the national rules pertaining to recognition contain
restrictions which exceed the limits of the discretion allowed to
Member States under that provision, it is for the national court
to determine, in the light of all the relevant facts, whether a
taxable person must none the less be regarded as an ‘other duly
recognised establishment of a similar nature’ within the meaning
of that provision.

(VAT — Article 13A(1)(b) and (c) of the Sixth Directive 77/
388/EEC — Exemption — Psychotherapeutic treatment
given in an out-patient facility provided by a foundation
governed
establishment)
employing qualified psychologists who are not doctors —
Direct effect)

law (charitable

private

by

(2004/C 7/03)

(Language of the case: German)

3.

4.

Since the exemption envisaged in Article 13A(1)(c) of the Sixth
Directive 77/388 is not dependent on the legal form of the
taxable person providing the medical or paramedical services
referred to in that provision, psychotherapeutic
treatment
provided by a foundation governed by private law and given by
psychotherapists employed by the foundation may benefit from
that exemption.

In circumstances such as those in the main proceedings,
Article 13A(1)(b) and (c) of the Sixth Directive 77/388 may
be relied on by a taxable person before a national court in order
to contest the application of rules of national law which are
incompatible with that provision.

(Provisional translation; the definitive translation will be published
in the European Court Reports)

(1) OJ C 134 of 5.5.2001.

In Case C-45/01: Reference to the Court under Article 234 EC
by the Bundesfinanzhof (Germany) for a preliminary ruling in
the proceedings pending before that court between Christoph-
Dornier-Stiftung für Klinische Psychologie and Finanzamt
Gießen, on the interpretation of Article 13A(1)(b) and (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 (OJ 1977 L 145, p. 1), the Court
(Fifth Chamber), composed of: D.A.O. Edward, acting as
President of the Fifth Chamber, P.
Jann and of A. Rosas
(Rapporteur), Judges; C. Stix-Hackl, Advocate General; H. von
Holstein, Deputy Registrar, has given a judgment on 6 Novem-
ber 2003, in which it has ruled:

1.

Psychotherapeutic treatment given in an out-patient facility of
a foundation governed by private law by qualified psychologists
who are not doctors is not an activity ‘closely related’ to hospital
or medical care within the meaning of Article 13A(1)(b) 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, except where such treatment is actually
given as a service ancillary to the hospital or medical care
received by the patients in question and constituting the
in that
principal service. However, the term ‘medical care’
provision must be interpreted as covering all provision of
medical care envisaged in letter (c) of the same provision,
including services provided by persons who are not doctors but
who give paramedical
such as psychotherapeutic
treatment given by qualified psychologists.

services,

JUDGMENT OF THE COURT

of 6 November 2003

in Case C-101/01 (Reference for a preliminary ruling from
the Göta hovrätt): Bodil Lindqvist (1)

(Directive 95/46/EC — Scope — Publication of personal
data on the internet — Place of publication — Definition of
transfer of personal data to third countries — Freedom of
expression — Compatibility with Directive 95/46 of greater
protection for personal data under the national legislation of
a Member State)

(2004/C 7/04)

(Language of the case: Swedish)

(Provisional translation; the definitive translation will be published
in the European Court Reports)

In Case C-101/01: Reference to the Court under Article 234 EC
by the Göta hovrätt (Sweden) for a preliminary ruling in the
criminal proceedings before that court against Bodil Lindqvist,
on, inter alia, the interpretation of Directive 95/46/EC of the
European Parliament and of the Council of 24 October 1995

C 7/4

EN

Official Journal of the European Union

10.1.2004

the Court, composed of: P.

on the protection of individuals with regard to the processing
of personal data and on the free movement of such data (OJ
1995 L 281, p. 31),
Jann,
President of
the First Chamber, acting for the President,
C.W.A. Timmermans, C. Gulmann, J.N. Cunha Rodrigues and
A. Rosas (Presidents of Chambers), D.A.O. Edward (Rappor-
teur), J.-P. Puissochet, F. Macken and S. von Bahr, Judges;
A. Tizzano, Advocate General; H. von Holstein, Deputy
Registrar, has given a judgment on 6 November 2003, in
which it has ruled:

1.

2.

3.

4.

5.

The act of referring, on an internet page, to various persons and
identifying them by name or by other means, for instance by
giving their telephone number or information regarding their
working conditions and hobbies, constitutes ‘the processing of
personal data wholly or partly by automatic means’ within the
meaning of Article 3(1) of Directive 95/46/EC of the European
Parliament and of the Council of 24 October 1995 on the
protection of
individuals with regard to the processing of
personal data and on the free movement of such data.

Such processing of personal data is not covered by any of the
exceptions in Article 3(2) of Directive 95/46.

Reference to the fact that an individual has injured her foot and
is on half-time on medical grounds constitutes personal data
concerning health within the meaning of Article 8(1) of
Directive 95/46.

There is no ‘transfer [of data] to a third country’ within the
meaning of Article 25 of Directive 95/46 where an individual
in a Member State loads personal data onto an internet page
which is stored on an internet site on which the page can be
consulted and which is hosted by a natural or legal person who
is established in that State or in another Member State, thereby
making those data accessible to anyone who connects to the
internet, including people in a third country.

The provisions of Directive 95/46 do not, in themselves, bring
about a restriction which conflicts with the general principles of
freedom of expression or other freedoms and rights, which are
applicable within the European Union and are enshrined inter
alia in Article 10 of the European Convention for the Protection
of Human Rights and Fundamental Freedoms signed at Rome
is for the national authorities
on 4 November 1950. It
and courts responsible for applying the national
legislation
implementing Directive 95/46 to ensure a fair balance between
the rights and interests in question, including the fundamental
rights protected by the Community legal order.

6. Measures taken by the Member States to ensure the protection
of personal data must be consistent both with the provisions of
Directive 95/46 and with its objective of maintaining a balance
between freedom of movement of personal data and the
protection of private life. However, nothing prevents a Member
legislation
State from extending the scope of the national

implementing the provisions of Directive 95/46 to areas not
included in the scope thereof provided that no other provision of
Community law precludes it.

(1) OJ C 118 of 21.4.2001.

JUDGMENT OF THE COURT

(Sixth Chamber)

of 20 November 2003

in Case C-126/01 (Reference for a preliminary ruling from
the Cour administrative d’appel de Lyon): Ministre de
l’économie, des finances et de l’industrie v GEMO SA (1)

(State aid — System of financing a public carcass disposal
service by a meat purchase tax — Interpretation of Article 92
of the EC Treaty (now, after amendment, Article 87 EC))

(2004/C 7/05)

(Language of the case: French)

(Provisional translation; the definitive translation will be published
in the European Court Reports)

In Case C-126/01: Reference to the Court under Article 234 EC
by the Cour administrative d’appel de Lyon (France) for a
preliminary ruling in the proceedings pending before that
court between Ministre de l’économie, des finances et de
l’industrie and GEMO SA, on the interpretation of Article 92
of the EC Treaty (now, after amendment, Article 87 EC), the
Court
(Sixth Chamber), composed of: V. Skouris, acting
as President of the Sixth Chamber, J.N. Cunha Rodrigues
(Rapporteur), R. Schintgen, F. Macken and N. Colneric, Judges;
F.G. Jacobs, Advocate General; H.A. Rühl, Principal Adminis-
trator, for the Registrar, has given a judgment on 20 November
2003, in which it has ruled:

Article 92(1) of the EC Treaty (now, after amendment, Article 87(1)
EC), must be interpreted as meaning that a system such as that
at
issue in the main proceedings, which provides farmers and
slaughterhouses with the free collection and disposal of animal
carcasses and slaughterhouse waste, must be classified as State aid.

(1) OJ C 134 of 5.5.2001.