H. A. Solleveld (C-443/04) and J. E. van den Hout-van Eijnsbergen (C-444/04) v Staatssecretaris van Financiën.
Date: 2006-04-27
16. Ms van den Hout-van Eijnsbergen works as a self-employed psychotherapist, and has a teaching diploma in this field. The Geneeskundig Hoofdinspecteur voor de Geestelijke Volksgezondheid (Principal Mental Health Inspector) found that she satisfied the conditions laid down in the 1986 Decree, and she was entered in the Register established by that Decree as a psychotherapist in 1988.
23. According to a literal interpretation of Article 13A(1)(c) of the Sixth Directive, the practitioner must satisfy two conditions to benefit from the exemption laid down in that provision, which are, first, that he must provide ‘medical care’ and, second, that this must be carried out ‘in the exercise of the medical and paramedical professions as defined by the Member State concerned’.
24. In the present case, it is common ground that the treatments given by the applicants in the main proceedings constitute medical care within the meaning of that provision, since those treatments are carried out for the purpose of diagnosing, treating and, in so far as possible, curing diseases or health disorders, thus pursuing a therapeutic aim (Case C‑307/01 D’Ambrumenil and Dispute Resolution Services  [2003] ECR I‑13989, paragraph 57).
28. In that respect, it is clear from the wording of Article 13A(1)(c) of the Sixth Directive that that provision does not itself define the concept of ‘paramedical professions’, but refers instead to the definition adopted by the national legislation of the Member States.
29. Under these circumstances, it is for each Member State to define, in its own domestic law, the paramedical professions in the context of which medical care is exempt from VAT, pursuant to Article 13A(1)(c) of the Sixth Directive. The Court has already held that that provision confers discretion on the Member States in this respect (Case C-45/01 Dornier  [2003] ECR I-12911, paragraph 81).
30. That discretion covers not only the power to define the qualifications required to carry out the said professions, but also the power to define the specific medical-care activities which are covered by such professions. In fact, since the various qualifications acquired by the service providers do not necessarily prepare them to provide all types of care, a Member State is entitled to take the view, in the exercise of its discretion, that the definition of paramedical professions would be incomplete if it were limited to imposing general requirements as to the qualifications of providers, without specifying the care in respect of which they are qualified in the context of those professions.
31. However, the discretion enjoyed by the Member States in this respect is not unlimited.
32. Admittedly, as the Netherlands Government states, the Member States are entitled, pursuant to the first clause of Article 13A(1) of the Sixth Directive, to lay down the conditions for granting exemptions to ensure their correct and straightforward application.
35. However, it follows from the Court’s case-law that the requirement of a correct and straightforward application of the exemptions does not allow the Member States to prejudice the objectives of the Sixth Directive or the principles of Community law, in particular the principle of equal treatment, which is reflected, in the field of VAT, by the principle of fiscal neutrality (see Dornier , paragraphs 42 and 69; Case C‑498/03 Kingscrest Associates and Montecello  [2005] ECR I‑4427, paragraphs 29 and 52; and Case C-246/04 Turn- und Sportunion Waldburg  [2006] ECR I-0000, paragraphs 44 to 46).
36. Consequently, where a taxable person requests that his medical-care activities be recognised as coming within the ambit of the exercise of paramedical professions, for the purpose of benefiting from the exemption from VAT laid down in Article 13A(1)(c) of the Sixth Directive, it is for the national courts to examine whether the competent authorities have observed the limits of the discretion granted by this provision, having regard to the objective pursued by the latter and the principle of fiscal neutrality inherent in the common system of VAT (see, to that effect, Case C-141/00 Kügler  [2002] ECR I-6833, paragraph 56; Dornier , paragraph 69; and Kingscrest Associates and Montecello , paragraph 52).
37. In this respect, concerning, first, the objective pursued by Article 13A(1)(c) of the Sixth Directive, it should be noted that the condition laid down by that provision, that medical care must be provided in the exercise of the paramedical professions as defined by the Member State concerned, is to ensure that the exemption applies only to medical care provided by practitioners with the required professional qualifications ( Kügler , paragraph 27). Consequently, not all medical care falls within the scope of such an exemption, the latter concerning only that of sufficient quality having regard to the professional training of the providers.
38. It follows that the exclusion of a particular profession or a specific medical-care activity from the definition of the paramedical professions adopted by the national legislation for the purpose of the exemption laid down by Article 13A(1)(c) of the Sixth Directive must be capable of justification on objective grounds based on the professional qualifications of the care providers and, therefore, by considerations relating to the quality of the services provided.
39. As regards, secondly, the principle of fiscal neutrality, which is inherent in the common system of VAT, it must be remembered that, according to case-law, that principle precludes 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; and Kingscrest Associates and Montecello , paragraph 54).
40. In order to determine whether medical care is similar, it is appropriate to take into account, concerning the exemption laid down in Article 13A(1)(c) of the Sixth Directive and having regard to the objective pursued by that provision, the professional qualifications of the care providers. In fact, where it is not identical, medical care can be regarded as similar only to the extent that it is of equivalent quality from the point of view of recipients.
41. It follows that the exclusion of a profession or specific medical-care activity from the definition of the paramedical professions adopted by the national legislation for the purpose of the exemption from VAT laid down in Article 13A(1)(c) of the Sixth Directive is contrary to the principle of fiscal neutrality only if it can be shown that the persons exercising that profession or carrying out that activity have, for the provision of such medical care, professional qualifications which are such as to ensure a level of quality of care equivalent to that provided by persons benefiting, pursuant to that same national legislation, from an exemption.
42. It is therefore for the referring court to determine whether, having regard to all of these factors, the exclusion, in Case C‑444/04, of the profession of psychotherapist and, in Case C‑443/04, of activities in the area of disturbance field diagnostics carried out by a physiotherapist, from the field of the exercise of the paramedical professions for the purpose of the exemption from VAT laid down in Article 13A(1)(c) of the Sixth Directive exceeds the limits of the discretion granted to the Member States by that provision.
45. If so, the national legislation at issue in the main proceedings would exceed the discretion enjoyed by the Member States under Article 13A(1)(c) of the Sixth Directive only if the quality of the treatments carried out by psychotherapists could be regarded, having regard to their professional qualifications, as equivalent to that of similar treatments carried out by psychiatrists, psychologists or any other medical or paramedical profession, a matter which it is for the referring court to determine in the light of all of the relevant circumstances of the case before it.
46. In that respect, the referring court will be able to take into account, in particular, the fact that the applicant in the main proceedings has a teaching diploma and that the psychotherapy treatments which she carried out during the relevant tax years took place within a statutory framework, under the control of the Public Health Inspectorate and in accordance with conditions set out in specific legislation, respect of which is attested to by entry in a register provided for that purpose, these circumstances being such as to ensure that she had, for the exercise of her activities, the required professional qualifications.
50. In this respect, the referring court will be able to take into account, in particular, the fact that, in his capacity as physiotherapist, the applicant in the main proceedings exercises a paramedical profession within the meaning of the national legislation of the Member State concerned, that he undertook specific additional training to be able to carry out the said treatments and that treatment often begins following referral of his patients by doctors or dentists.