Maatschap M.J.M. Linthorst, K.G.P. Pouwels en J. Scheren c.s. v Inspecteur der Belastingdienst/Ondernemingen Roermond.
Date: 1997-03-06
10 As regards the relationship between Article 9(1) and Article 9(2), the Court has already held that Article 9(2) sets out a number of specific instances of places where certain services are deemed to be supplied, whereas Article 9(1) lays down the general rule on the matter.  The object of those provisions is to avoid, first, conflicts of jurisdiction, which may result in double taxation, and, secondly, non-taxation, as Article 9(3) indicates, albeit only as regards specific situations (Case 168/84 Berkholz v Finanzamt Hamburg-Mitte-Altstadt [1985] ECR 2251, paragraph 14, and Case C-327/94 Dudda [1996] ECR I-4595, paragraph 20).
11 It follows that, when Article 9 is interpreted, Article 9(1) in no way takes precedence over Article 9(2).  In every situation, the question which arises is whether it is covered by one of the instances mentioned in Article 9(2); if not, it falls within the scope of Article 9(1) (Dudda, paragraph 21).
18 It should therefore be held that the services principally and habitually provided by a veterinary surgeon do not fall within the fourth indent of Article 9(2)(c) of the Sixth Directive either.
19 The third possible hypothesis in this case is services of `consultants, engineers, consultancy bureaux, lawyers, accountants and other similar services' [third indent of Article 9(2)(e)].
20 It should be noted that the only common feature of the disparate activities mentioned in that provision is that they all come under the heading of liberal professions. Yet, as the German Government rightly observed, if the Community legislature had intended all activities carried on in an independent manner to be covered by that provision, it would have defined them in general terms.
21 Moreover, if the legislature had intended that provision to cover the medical profession generally, as an activity typically carried out in an independent manner, it would have included it in the list, since, as the national court and the Advocate General in paragraph 22 of his Opinion pertinently observe, other provisions of the Sixth Directive, such as in particular the transitional exception provided pursuant to Article 28(3)(b) in conjunction with Annex F, specifically mention the services of veterinary surgeons.
22 It is appropriate to add that, whereas veterinary surgeons' duties sometimes involve advisory or consultancy aspects, that fact is not enough to bring the principal and habitual activities of the profession of veterinary surgeon within the concepts of `consultants' or `consultancy bureaux' or to cause them to be regarded as `similar'.
25 The answer to the national court's question must therefore be that Article 9 of the Sixth Directive must be interpreted as meaning that the place where the services principally and habitually carried out by a veterinary surgeon should be deemed to be supplied is the place where the supplier has established his business or has a fixed establishment from which the services are supplied or, in the absence of such a place of business or fixed establishment, the place where he has his permanent address or usually resides.