Werner Haderer v Finanzamt Wilmersdorf.
Date: 2007-06-14
16. As a preliminary point, it should be noted that Article 13A of the Sixth Directive relates to the exemption from VAT of certain activities in the public interest. However, that exemption does not cover every activity performed in the public interest, but only those which are listed in that provision and described in great detail (see Case C‑149/97 Institute of the Motor Industry  [1998] ECR I‑7053, paragraph 18; Joined Cases C‑394/04 and C‑395/04 Ygeia  [2005] ECR I‑10373, paragraph 16; and Case C‑401/05 VDP Dental Laboratory  [2006] ECR I‑0000, paragraph 24).
17. According to the case-law of the Court, the exemptions provided for in Article 13 of the Sixth Directive 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 (see Case C‑349/96 CPP  [1999] ECR I‑973, paragraph 15; Case C‑240/99 Skandia  [2001] ECR I‑1951, paragraph 23; and Ygeia , paragraph 15).
18. The terms used to specify those exemptions 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 (see Case C‑287/00 Commission  v Germany  [2002] ECR I‑5811, paragraph 43, and Case C‑8/01 Taksatorringen  [2003] ECR I‑13711, paragraph 36). Nevertheless, the interpretation of those terms must be consistent with the objectives pursued by those exemptions and comply with the requirements of the principle of fiscal neutrality inherent in the common system of VAT (see Case C‑45/01 Dornier  [2003] ECR I‑12911, paragraph 42; Case C‑498/03 Kingscrest Associates and Montecello  [2005] ECR I‑4427, paragraph 29; and Case C‑106/05 L.u.P.  [2006] ECR I‑5123, paragraph 24). Thus, the requirement of strict interpretation does not mean that the terms used to specify the exemptions referred to in Article 13 should be construed in such a way as to deprive the exemptions of their intended effect (see, to that effect, Case C‑284/03 Temco Europe  [2004] ECR I‑11237, paragraph 17, and also, in relation to university education, Commission  v Germany , paragraph 47).
19. The same must also be true of the specific conditions laid down for those exemptions to apply, and in particular of those concerning the status or identity of the economic agent performing the services covered by the exemption (see, to that effect, Case C‑216/97 Gregg  [1999] ECR I‑4947, paragraphs 16 to 20).
24. In that regard, although the terms used to specify the exemption envisaged under Article 13A(1)(j) of the Sixth Directive are, admittedly, to be interpreted strictly, a particularly narrow interpretation of ‘school or university education’ would risk creating divergences in the application of the VAT system from one Member State to another, as the Member States’ respective education systems are organised according to different rules. Such divergences would be incompatible with the requirements of the case-law referred to in paragraph 17 of this judgment.
25. Furthermore, in so far as the Finanzamt’s arguments on that point are based on a particular interpretation of ‘school’ or ‘university’ in terms of the German education system, it should be noted that whether a specific transaction is subject to or exempt from VAT cannot depend on its classification in national law (see Kingscrest Associates and Montecello , paragraph 25).
26. While it is unnecessary to produce a precise definition in this judgment of the Community concept of ‘school or university education’ for the purposes of the VAT system, it is sufficient, in this case, to observe that that concept is not limited only to education which leads to examinations for the purpose of obtaining qualifications or which provides training for the purpose of carrying out a professional or trade activity, but includes other activities which are taught in schools or universities in order to develop pupils’ or students’ knowledge and skills, provided that those activities are not purely recreational.
28. Furthermore, in order for the exemption under Article 13A(1)(j) of the Sixth Directive to apply, it is not sufficient for the tuition to cover school or university education; it must also be ‘given privately by teachers’.
33. In the main proceedings, as paragraphs 5 to 8 of this judgment show, certain matters included in the case-file before the Court, taken in isolation, could certainly suggest that Mr Haderer carried out his activities on his own account and at his own risk, and thus that he was carrying them out ‘privately’. That applies, in particular, to the lack of entitlement to the continued payment of fees if he was prevented from working, and to the fact that he bore the risk of the loss of his fee in the event of courses being cancelled.
34. However, it is clear from those same paragraphs of this judgment that Mr Haderer carried out the activities at issue in the main proceedings on the basis of successive contracts with the Land of Berlin. It appears that, save in the event of courses being cancelled because of a lack of pupils or students, the fees he received were calculated on an hourly basis, irrespective of the number of course participants. In addition, even though the contracts stated that no ‘employment relationship’ – within the meaning of that term under German employment law – was thereby established, Mr Haderer was given financial assistance towards his pension contributions and health insurance, and also a proportional leave allowance. Finally, Mr Haderer carried out the activities at issue in the main proceedings at adult education centres administered by the Land of Berlin.
35. The matters set out in the preceding paragraph tend therefore to indicate that, far from giving tuition on his own account and at his own risk, Mr Haderer in fact made himself available as a teacher to the Land of Berlin, which paid him as a provider of services to the education system administered by that Land . It is for the referring court to verify this, taking into account all the circumstances of the case.