Diagnostiko & Therapeftiko Kentro Athinon-Ygeia AE v Ypourgos Oikonomikon.
Date: 2005-12-01
15. It should be noted at the outset that, according to the Court’s case-law, the terms used to specify the exemptions provided for by Article 13 of the Sixth Directive are to be interpreted strictly, since they constitute exceptions to the general principle that VAT is to be levied on all services supplied for consideration by a taxable person (Case C-287/00 Commission v Germany  [2002] ECR I-5811, paragraph 43, and Case C‑498/03 Kingscrest Associates and Montecello  [2005] ECR I‑4427, paragraph 29). Those exemptions constitute independent concepts of Community law whose purpose is to avoid divergences in the application of the VAT system from one Member State to another (Case C-349/96 CPP  [1999] ECR I-973, paragraph 15, and Case C-240/99 Skandia  [2001] ECR I-1951, paragraph 23).
16. Moreover, the aim of Article 13A of the Sixth Directive is to exempt from VAT certain activities which are in the public interest. That provision does not, however, provide exemption from VAT for every activity performed in the public interest, but only for those which are listed therein and described in great detail (see, inter alia, Case C‑149/97 Institute of the Motor Industry  [1998] ECR I‑7053, paragraph 18, and Case C-8/01 Taksatorringen  [2003] ECR I‑13711, paragraph 60).
17. As the Court has already stated, Article 13A(1)(b) of the Sixth Directive does not include any definition of the concept of ‘activities closely related’ to hospital and medical care (Case C-76/99 Commission  v France  [2001] ECR I‑249, paragraph 22). None the less, it is apparent from the very terms of that provision that it does not envisage services which are unrelated to hospital care for the patients receiving those services or to any medical care which they might receive ( Dornier , cited above, paragraph 33).
18. Accordingly, services fall within the concept of an ‘activity closely related’ to hospital or medical care appearing in Article 13A(1)(b) of that directive only when they are actually supplied as a service ancillary to the hospital or medical care received by the patients in question and constituting the principal service ( Dornier , paragraph 35).
19. It is apparent from the case-law that a service can be considered to be ancillary to a principal service where it constitutes not an end in itself but a means of enhancing the enjoyment or benefit of the principal service supplied by the provider (see, to this effect, in particular, Joined Cases C-308/96 and C-94/97 Madgett and Baldwin [1998] ECR I‑6229, paragraph 24, and Dornier , paragraph 34).
22. For the purpose of determining whether services such as those at issue in the main proceedings amount to a means of enhancing the benefit of hospital and medical care dispensed by Ygeia, it is appropriate, as maintained by all of the governments of the Member States which have submitted observations and the Commission of the European Communities, to take into account the purpose for which those services are carried out (see, in this regard, Commission v France , cited above, paragraph 24).
23. The exemption of activities closely related to hospital and medical care provided for in Article 13A(1)(b) of the Sixth Directive is designed to ensure that access to such care is not prevented by the increased costs of providing it that would follow if it, or closely related activities, were subject to VAT ( Commission  v France , paragraph 23).
24. The hospital and medical care envisaged by this provision is, according to the case-law, that which has as its purpose the diagnosis, treatment and, in so far as possible, cure of diseases or health disorders ( Dornier , paragraph 48).
25. Accordingly, taking account of the objective pursued by the exemption provided for in Article 13A(1)(b) of the Sixth Directive, it follows that only the supply of services which are logically part of the provision of hospital and medical-care services, and which constitute an indispensable stage in the process of the supply of those services to achieve their therapeutic objectives, is capable of amounting to ‘closely related activities’ within the meaning of that provision. Only such services are of a nature to influence the cost of health care which is made accessible to individuals by the exemption in question.
26. That finding is confirmed, as is correctly maintained by those governments that submitted observations, by the first indent of Article 13A(2)(b) of that directive, according to which the Member States are not to exempt the supply of services envisaged, inter alia, in Article 13A(1)(b) if they ar e not essential to the transactions exempted. As the Advocate General noted at points 30 to 32 of his Opinion, that provision, which is binding on the Member States, lays down conditions which must be taken into account for the interpretation of the various exemptions referred to therein, which, like that provided for in Article 13A(1)(b), relate to the supply of services or goods which are ‘closely related’ or ‘closely linked’ to an activity in the public interest.
27. In addition, at paragraphs 48 and 49 of the judgment in Commission  v Germany , cited above, the Court held, in relation to the exemption provided for in Article 13A(1)(i) of the Sixth Directive concerning the supply of services ‘closely related’ to university education, that the carrying out of research projects for consideration, even though it may be regarded as of great assistance to university education, is not essential to attain its objective, that is, in particular, the teaching of students to enable them to pursue a professional activity, and that, accordingly, it could not benefit from that exemption.
31. Those findings are not affected by the arguments relied on by Ygeia, according to which the concept of ‘activities closely related’ to hospital and medical care featuring in Article 13A(1)(b) of the Sixth Directive does not, taking account of the objective of the exemption, call for an especially narrow interpretation ( Commission  v France , paragraph 23). As is already clear from paragraph 25 of the present judgment, subjecting services which are not of an ancillary character to VAT does not have the effect of increasing the cost of the hospital and medical care the accessibility of which this provision seeks to ensure for individuals, since those services are not essential to achieve the therapeutic objectives pursued by that care (see, to this effect, Case C-307/01 D’Ambrumenil and Dispute Resolution Services  [2003] ECR I‑13989, paragraph 59).
32. Moreover, as observed by the Advocate General at point 47 of his Opinion, the imposition of VAT on such services respects the principle of fiscal neutrality, which precludes, in particular, treating similar supplies of services, which are thus in competition with each other, differently for VAT purposes (Case C-109/02 Commission  v Germany  [2003] ECR I-12691, paragraph 20).