Future Health Technologies Ltd v The Commissioners for Her Majesty’s Revenue and Customs.
Date: 2010-06-10
25. It should be noted at the outset that under Directive 2006/112, as under the Sixth Directive, the scope of VAT is very wide in that Article 2 of the former, which concerns taxable transactions, refers not only to the importation of goods but also to the supply of goods or services for consideration within the territory of the country by a taxable person acting as such (see by analogy, among others, Case C‑255/02 Halifax and Others  [2006] ECR I‑1609, paragraph 49; Case C‑401/05 VDP Dental Laboratory  [2006] ECR I‑12121, paragraph 22; and Case C‑88/09 Graphic Procédé  [2010] ECR I‑0000, paragraph 15). Article 132 of Directive 2006/112 nevertheless exempts, in the same way as Article 13 of the Sixth Directive, certain activities from VAT.
26. As stated in paragraphs 4, 6 and 8 of the present judgment, the wording of Article 13A(1)(b) and (c) of the Sixth Directive is, essentially, identical to that of Article 132(1)(b) and (c) of Directive 2006/112, read in conjunction with Article 131 thereof. In addition, it appears from recitals 1 and 3 in its preamble that Directive 2006/112 is not, in principle, intended to bring about material change as against the provisions of the Sixth Directive.
27. It follows that Article 13A(1)(b) and (c) of the Sixth Directive and Article 132(1)(b) and (c) of Directive 2006/112 must be interpreted in the same way (see also, by analogy, Case C‑291/07 Kollektivavtalsstiftelsen TRR Trygghetsrådet [2008] ECR I‑8255, paragraph 23). Thus, the case-law developed in relation to the exemptions provided for by Article 13A(1)(b) and (c) of the Sixth Directive lends itself, in the present case, to serving as a basis for the replies sought by the request for a preliminary ruling.
28. In that regard, it is settled case-law that the exemptions referred to in Article 13 of the Sixth Directive constitute independent concepts of European Union law whose purpose is to avoid divergences in the application of the VAT system as between one Member State and another (see by analogy, in particular, Case C‑349/96 CPP  [1999] ECR I‑973, paragraph 15, and Case C‑473/08 Eulitz  [2010] ECR I‑0000, paragraph 25). The same applies as regards the exemptions under Article 132 of Directive 2006/112.
29. It is, moreover, apparent from the case-law relating to Article 13A of the Sixth Directive that the exemptions under Article 132 of Directive 2006/112 are not aimed at exempting from VAT every activity performed in the public interest, but only those which are listed and described in great detail in it (see by analogy, in particular, Case 107/84 Commission  v Germany  [1985] ECR 2655, paragraph 17; Case C‑307/01 D’Ambrumenil and Dispute Resolution Services  [2003] ECR I‑13989, paragraph 54; and Eulitz , paragraph 26 and the case-law cited).
30. It also follows from the case-law relating to the Sixth Directive that the terms used to specify the exemptions in Article 132 of Directive 2006/112 are to be interpreted strictly, since they constitute exceptions to the general principle, arising from Article 2(1)(a) and (c) of Directive 2006/112, that VAT is to be levied on all goods and services supplied for consideration by a taxable person. 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. Thus, the requirement of strict interpretation does not mean that the terms used to specify the exemptions referred to in Article 132 should be construed in such a way as to deprive the exemptions of their intended effect (see by analogy, in particular, Case C‑445/05 Haderer  [2007] ECR I‑4841, paragraph 18 and the case-law cited; Case C‑461/08 Don Bosco Onroerend Goed  [2009] ECR I‑0000, paragraph 25 and the case-law cited; as well as Eulitz , paragraph 27 and the case-law cited).
36. As regards medical services, it is apparent from the case-law that Article 13A(1)(b) of the Sixth Directive covered all services supplied in a hospital environment while Article 13A(1)(c) thereof covered medical 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, Case C‑141/00 Kügler  [2002] ECR I‑6833, paragraph 36). It follows that Article 13A(1)(b) and (c) of the Sixth Directive, which had separate fields of application, were intended to regulate all exemptions of medical services in the strict sense (see Kügler , paragraph 36, and Case C‑106/05 L.u.P.  [2006] ECR I‑5123, paragraph 26).
37. Accordingly, as the Court has previously ruled, the concept of ‘medical care’ in Article 13A(1)(b) of the Sixth Directive and that of ‘the provision of medical care’ in Article 13A(1)(c) were both intended to cover services which had as their purpose the diagnosis, treatment and, in so far as possible, cure of diseases or health disorders (see Case C‑45/01 Dornier  [2003] ECR I‑12911, paragraph 48 and the case-law cited, and L.u.P. , paragraph 27).
38. As is clear from paragraph 27 of the present judgment, the same now applies as regards the identical expressions in Article 132(1)(b) and (c) respectively of Directive 2006/112.
40. In that regard, it should be borne in mind that, whilst ‘medical care’ and ‘the provision of medical care’ must have a therapeutic aim, it does not necessarily follow that the therapeutic purpose of a service must be confined within a particularly narrow compass (see Case C‑76/99 Commission  v France  [2001] ECR I‑249, paragraph 23; Case C‑212/01 Unterpertinger  [2003] ECR I‑13859, paragraph 40; and L.u.P. , paragraph 29).
41. Accordingly, medical services effected for the purpose of protecting, including maintaining or restoring, human health could benefit from the exemption under Article 13A(1)(b) and (c) of the Sixth Directive (see, to that effect, Unterpertinger , paragraphs 40 and 41; D’Ambrumenil and Dispute Resolution Services , paragraphs 58 and 59; and L.u.P ., paragraph 29).
42. As follows from paragraph 27 of the present judgment, the same now applies as regards Article 132(1)(b) and (c) of Directive 2006/112.
43. However, the activities in question in the main proceedings, as carried out by FHT, namely the dispatch of a kit for collecting umbilical cord blood and the testing and processing of that blood and, where appropriate, the storage of stem cells contained in it, whether taken together or separately, do not appear to have as their direct purpose any actual diagnosis, treatment or cure of diseases or health disorders, or any actual protection, maintenance or restoration of health.
49. As regards Article 13A(1)(b) of the Sixth Directive, it is clear from paragraphs 45 to 50 of the judgment in Case C‑262/08 CopyGene  [2010] ECR I‑0000, that the concept of activities ‘closely related’ to ‘hospital and medical care’ within the meaning of Article 13A(1)(b) of the Sixth Directive is to be interpreted as not covering activities such as the collection, transport and analysis of cord blood of newborn children and the storage of stem cells contained in that blood, where the medical care provided in a hospital environment to which those activities are merely potentially related has not been performed, commenced or yet envisaged.