Finanzamt Kyritz v Wolf-Henning Peters.
Date: 2019-09-18
18


It must be noted at the outset that Article 13(A)(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 Sixth Directive’) and Article 132(1)(b) and (c) of Directive 2006/112, having an essentially identical wording, must be interpreted in the same way and that consequently the case-law of the Court on the first of these provisions lends itself to serving as a basis for the interpretation of the second provision (see, to that effect, judgment of 10 June 2010, Future Health Technologies, C‑86/09, EU:C:2010:334, paragraph 27).
20


It is clear from the case-law of the Court that the concept of ‘medical care’ in Article 132(1)(b) of Directive 2006/112 and that of ‘the provision of medical care’ within the meaning of Article 132(1)(c) are both intended to cover services that have as their aim the diagnosis, treatment and, in so far as possible, cure of diseases or health disorders (judgment of 2 July 2015, De Fruytier, C‑334/14, EU:C:2015:437, paragraph 20 and the case-law cited).
21


It is also important to note that the criterion for drawing a clear distinction between the two tax exemptions under those provisions is less the nature of the service than the place where it is provided. Article 132(1)(b) of the directive covers all services supplied in a hospital environment while Article 132(1)(c) thereof covers services provided outside such a framework, both at the private address of the person providing the care and at the patient’s home or at any other place (see, to that effect, judgment of 8 June 2006, L.u.P., C‑106/05, EU:C:2006:380, paragraph 22 and judgment of 2 July 2015, De Fruytier, C‑334/14, EU:C:2015:437, paragraph 19).
23


With regard to the application of Article 132(1)(b) of the directive to such services, the Court has already held that a laboratory or an individualised entity performing a comparable function is capable of constituting an establishment ‘of a similar nature’ to ‘hospitals’ and ‘centres for medical treatment or diagnosis’ within the meaning of Article 132(1)(b) of Directive 2006/112 (see, to that effect, judgment of 2 July 2015, De Fruytier, C‑334/14, EU:C:2015:437, paragraph 35 and the case-law cited).
24


That being said, in order to determine whether medical care is exempt from VAT pursuant to Article 132(1)(b) or (c) of the directive, account must be taken of all the requirements laid down in that provision and in the other relevant provisions of Title IX, Chapters 1 and 2 of the directive (see, to that effect, judgment of 21 March 2013, PFC Clinic, C‑91/12, EU:C:2013:198, paragraph 37 and the case-law cited).
29


Moreover, the Court has stated that, it would be contrary to the principle of fiscal neutrality to make medical tests prescribed by general practitioners subject to a different VAT scheme depending on where they are carried out when they are equivalent from a qualitative point of view in the light of the professional qualifications of the service providers in question (see, to that effect, judgment of 8 June 2006, L.u.P., C‑106/05, EU:C:2006:380, paragraph 32).
32


In that regard, it must be noted that it follows from a literal interpretation of Article 132(1)(c) of the directive that the supply of a service must be exempt if it satisfies two conditions, namely, first, that it constitutes provision of medical care and, second, that it is carried out in the exercise of the medical and paramedical professions as defined by the Member State concerned (see, to that effect, judgment of 10 September 2002, Kügler, C‑141/00, EU:C:2002:473, paragraph 27 and judgment of 27 April 2006, Solleveld and van den Hout-van Eijnsbergen, C‑443/04 and C‑444/04, EU:C:2006:257, paragraph 23).
34


Moreover, to add such a condition is unwarranted in light of the objective of that provision of reducing the cost of medical care and making that care more accessible to individuals (see, to that effect, judgment of 13 March 2014, Klinikum Dortmund, C‑366/12, EU:C:2014:143, paragraph 28 and the case-law cited), to the extent that those services are of sufficient quality (see, to that effect, judgment of27 April 2006, Solleveld and van den Hout-van Eijnsbergen, C‑443/04 and C‑444/04, EU:C:2006:257, paragraph 37), without the existence of a confidential relationship between the patient and the person providing the care being decisive in that regard.
35


It is true that the Court has held that, in contrast to Article 13(A)(1)(b) of the Sixth Directive, the exemption laid down in Article 13(A)(1)(c) of that directive applies to services provided outside hospitals and similar establishments and within the framework of a confidential relationship between the patient and the person providing the care, a relationship which is normally established in the consulting room of that person (see, to that effect, judgment of 23 February 1988, Commission v United Kingdom, 353/85, EU:C:1988:82, paragraph 33 and judgment of 10 September 2002, Kügler, C‑141/00, EU:C:2002:473, paragraph 35).