Joined Cases C-443/04 and C-444/04: Judgment of the Court (Third Chamber) of  27 April 2006  (references for a preliminary ruling from the Hoge Raad der Nederlanden) — H.A. Solleveld (C-443/04) and J.E. van den Hout-van Eijnsbergen (C-444/04) v Staatssecretaris van Financiën (Sixth VAT Directive — Article 13A(1)(c) — Exemptions — Provision of medical care in the exercise of the medical and paramedical professions — Therapeutic treatments given by a physiotherapist and a psychotherapist — Definition by the Member State concerned of paramedical professions — Discretion — Limits)
Date: 2006-06-17
Institutions: Court of Justice
Subjects: VAT, health care, interpretation of the law, medical diagnosis, psychology, tax exemption, therapeutics

C 143/14

EN

Official Journal of the European Union

17.6.2006

Operative part of the judgment

Re:

The Court:

1. Declares that, by failing to adopt, within the prescribed period, the
Law on the Rules governing Teachers in the Länder (Landeslehrer-
Dienstrechtsgesetz), contrary to the requirements of Article 18(1)
of Council Directive 89/391/EEC of 12 June 1989 on the intro-
duction of measures to encourage improvements in the safety and
health of workers at work, and by failing to implement, or to
implement in full, Article 2(1), in respect of compulsory education
teachers in the Tyrol, and Articles 7(3), 8(2), 11(2)(c) and (d)
and 13(2)(b) of that directive, the Republic of Austria has failed
to fulfil its obligations under those provisions of the Directive;

2. Dismisses the remainder of the action;

Reference for a preliminary ruling — Hoge Raad der Neder-
landen — Interpretation of Article 13A(1)(c) of Directive
77/388/EEC: Sixth Council Directive 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) — Exemption for
medical care provided in the exercise of the medical and para-
medical professions, as defined by the Member State concerned
— Activities carried out by a physiotherapist outside the scope
of the national medical and paramedical activities

3. Orders the Republic of Austria to bear its own costs and five
sixths of the costs of the Commission of the European Commu-
nities.

Operative part of the judgment

(1) OJ C 314, 18.12.2004.

Judgment of the Court (Third Chamber) of 27 April 2006
(references for a preliminary ruling from the Hoge Raad
der Nederlanden) — H.A. Solleveld (C-443/04) and J.E. van
den Hout-van Eijnsbergen (C-444/04) v Staatssecretaris
van Financiën

(Joined Cases C-443/04 and C-444/04) (1)

(Sixth VAT Directive — Article 13A(1)(c) — Exemptions —
Provision of medical care in the exercise of the medical and
paramedical professions — Therapeutic treatments given by
a physiotherapist and a psychotherapist — Definition by the
Member State concerned of paramedical professions —
Discretion — Limits)

(2006/C 143/25)

Language of the case: Dutch

Referring court

Hoge Raad der Nederlanden

Article 13A(1)(c) of 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 must be interpreted as meaning that it confers on
the Member States the discretion to define the paramedical professions
and the medical care coming within the scope of such professions for
the purpose of the exemption laid down by that provision. However,
the Member States must, in the exercise of that discretion, comply
with the objective pursued by the said provision, which is to ensure
that the exemption applies solely to services provided by persons with
the required professional qualifications, and the principle of
fiscal
neutrality.

National legislation which excludes the profession of psychotherapist
from the definition of the paramedical professions is contrary to the
said objective and principle only to the extent that psychotherapeutic
treatments would, if carried out by psychiatrists, psychologists or any
other medical or paramedical profession, be exempt from value added
tax, whereas, carried out by psychotherapists, they can be regarded as
being of equivalent quality having regard to the professional qualifica-
tions of the latter, a matter which it is for the referring court to deter-
mine.

National legislation which excludes certain specific medical-care activ-
ities, such as treatments using disturbance field diagnostics, carried
out by physiotherapists from the definition of that paramedical profes-
sion is contrary to the said objective and principle only to the extent
that such treatments carried out in the context of the said activities
would, if carried out by doctors or dentists, be exempt from value
added tax, whereas, carried out by physiotherapists,
they can be
regarded as being of equivalent quality having regard to the profes-
sional qualifications of the latter, a matter which it is for the referring
court to determine.

Parties to the main proceedings

(1) OJ C 6, 8.1.2005.

Applicant: H.A. Solleveld, J.E. van den Hout-van Eijnsbergen

Defendant: Staatssecretaris van Financiën