Frenetikexito – Unipessoal Lda v Autoridade Tributária e Aduaneira.
Date: 2021-03-04
In that regard, it should be recalled that, according to the Court’s settled case-law, in the context of the cooperation between the Court of Justice and the national courts, the need to provide an interpretation of EU law which will be of use to the national court means that the national court is bound to observe scrupulously the requirements concerning the content of a request for a preliminary ruling, expressly set out in Article 94 of the Rules of Procedure (judgment of 19 April 2018, Consorzio Italian Management and Catania Multiservizi, C‑152/17, EU:C:2018:264, paragraph 21 and the case-law cited).
Thus, it is, in particular, essential, as stated in Article 94(a) of the Rules of Procedure, that the order for reference itself contain a summary of the relevant findings of fact as determined by the referring court  or, at least, an account of the facts on which the questions are based (judgment of 3 December 2019, Iccrea Banca, C‑414/18, EU:C:2019:1036, paragraph 28 and the case-law cited), and a statement of the reasons which prompted the national court to inquire about the interpretation or validity of certain provisions of EU law and the relationship between those provisions and the national legislation applicable to the main proceedings (order of 5 June 2019, Wilo Salmson France, C‑10/19, not published, EU:C:2019:464, paragraph 15).
As is clear from settled case-law, the terms used to specify the exemptions in Article 132 of Directive 2006/112 are to be interpreted strictly. 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. However, that 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 them of their intended effect (judgment of 8 October 2020, Finanzamt D, C‑657/19, EU:C:2020:811, paragraph 28 and the case-law cited).
In the present case, the provision in question must be interpreted in the light of the context in which it is used and of the aims and scheme of Directive 2006/112, with particular regard to the underlying purpose of the exemption which it establishes (see, to that effect, judgment of 13 March 2014, ATP PensionService, C‑464/12, EU:C:2014:139 paragraph 61 and the case-law cited). Thus, the wording of Article 132(1)(c) of that directive, that is ‘the provision of medical care in the exercise of the medical and paramedical professions as defined by the Member State concerned’, does not cover services supplied in a hospital environment, centres for medical treatment or diagnosis and other establishments of a similar nature, exempted under Article 132(1)(b) of that directive, but the medical and paramedical service supplied outside that context, 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, judgments of 10 September 2002, Kügler, C‑141/00, EU:C:2002:473, paragraph 36, and of 10 June 2010, Future Health Technologies, C‑86/09, EU:C:2010:334, paragraph 36).
It must furthermore be noted that the concept of ‘medical care’ contained in Article 132(1)(b) of Directive 2006/112 and that of ‘the provision of medical care’, referred to in Article 132(1)(c) of that directive, are both intended to cover services that have as their purpose the diagnosis, treatment and, in so far as possible, cure of diseases or health disorders (see judgments of 10 June 2010, Future Health Technologies, C‑86/09, EU:C:2010:334, paragraphs 37 and 38, and of 18 September 2019, Peters, C‑700/17, EU:C:2019:753, paragraph 20 and the case-law cited).
Therefore, the ‘provision of medical care’, within the meaning of that provision, must necessarily have a therapeutic purpose, since that is what determines whether a medical or paramedical service must be exempt from VAT (see, to that effect, judgment of 5 March 2020, X (VAT exemption for telephone consultations), C‑48/19, EU:C:2020:169, paragraph 27 and the case-law cited), although it does not necessarily follow that that purpose must be confined within a particularly narrow compass (judgments of 10 June 2010, Future Health Technologies, C‑86/09, EU:C:2010:334, paragraph 40 and the case-law cited, and of 21 March 2013, PFC Clinic, C‑91/12, EU:C:2013:198, paragraph 26).
Thus, supplies of a medical or paramedical nature carried out with the aim of protecting, including maintaining or restoring, the health of persons may benefit from the exemption provided for in Article 132(1)(c) of Directive 2006/112 (judgment of 5 March 2020, X (VAT exemption for telephone consultations), C‑48/19, EU:C:2020:169, paragraph 29 and the case-law cited).
With regard to the second condition, it is important to determine, as the Portuguese Government and the Commission point out, whether a nutrition monitoring service, such as that at issue in the main proceedings, supplied by a certified professional authorised for that purpose in sports facilities, potentially as part of programmes which also include physical well-being and fitness services, is defined by the law of the Member State concerned (judgment of 27 June 2019, Belgisch Syndicaat van Chiropraxie and Others,  C‑597/17, EU:C:2019:544, point 23 and the case-law cited) as being provided in the exercise of a medical or paramedical profession. It is apparent from the information in the order for reference, clarified by the observations of the Portuguese Government, that the service in question was provided by a person with a professional qualification entitling him or her to carry out paramedical activities as defined by the Member State concerned, which will be for the national court to confirm.
Assuming that this is indeed the case, the focus must be on the purpose of a supply such as that at issue in the main proceedings, which corresponds to the first condition laid down in Article 132(1)(c) of Directive 2006/112. In that regard, it is necessary to bear in mind, when examining that purpose, that the exemptions laid down in Article 132 of that directive are in Chapter 2, headed ‘Exemptions for certain activities in the public interest’, of Title IX of that directive. Thus, an activity cannot be exempted, under an exception to the general principle that VAT is to be levied on all services supplied for consideration by a taxable person (judgments of 21 March 2013, PFC Clinic, C‑91/12, EU:C:2013:198, paragraph 23, and of 21 September 2017, Commission v Germany, C‑616/15, EU:C:2017:721, paragraph 49), if it does not fulfil that purpose based on the public interest, common to all the exemptions listed in Article 132.
That interpretation does not contravene the fiscal neutrality principle, which precludes in particular two deliveries of goods or two supplies of services which are identical or similar from the point of view of the consumer and meet the same needs of the consumer, and which are therefore in competition with one another, from being treated differently with regard to VAT (see, to that effect, judgment of 17 December 2020, WEG Tevesstraße, C‑449/19, EU:C:2020:1038, paragraph 48 and the case-law cited), since, in the light of the objective pursued in Article 132(1)(c) of Directive 2006/112, nutrition monitoring services provided with a therapeutic purpose and nutrition monitoring services without such an objective cannot be regarded as identical or similar from the point of view of the consumer and do not fulfil the same needs on the part of that consumer.
Accordingly, it must be noted that although, in the context of proceedings referred to in Article 267 TFEU, which are based on a clear separation of functions between the national courts and the Court of Justice, it is for those courts, which alone have jurisdiction, inter alia, to establish and assess the facts, to determine, in particular, whether or not a nutrition monitoring service provided under conditions such as those at issue in the main proceedings constitutes a supply of services independent of physical well-being and fitness services and to make all definitive findings of fact in that regard (judgement of 19 December 2018, Mailat, C‑17/18, EU:C:2018:1038, paragraph 35 and the case-law cited), the Court may provide the national courts with all the guidance as to the interpretation of EU law which may be of assistance in adjudicating on the case pending before them (judgment of 17 January 2013, BGŻ Leasing, C‑224/11, EU:C:2013:15, paragraph 33). From that point of view, the following considerations ought to be noted.
It follows from the Court’s case-law that where an economic transaction comprises a bundle of elements and acts, regard must be had to all the circumstances in which the transaction in question takes place in order to determine whether it gives rise to one or more supplies (see, to that effect, judgment of 25 February 1999, CPP, C‑349/96, EU:C:1999:93, paragraph 28 and the case-law cited), given that, as a general rule, each supply must be regarded as a distinct and independent supply, as follows from the second subparagraph of Article 1(2) of Directive 2006/112 (judgment of 2 July 2020, Blackrock Investment Management (UK), C‑231/19, EU:C:2020:513, paragraph 23 and the case-law cited).
However, by way of exception to that general rule, first, the transaction which comprises a single supply from an economic point of view should not be artificially split, so as not to distort the functioning of the VAT system. This is why there is a single supply where several elements or acts supplied by the taxable person to the customer are so closely linked that they form, objectively, a single, indivisible economic supply, which it would be artificial to split (judgment of 2 July 2020, Blackrock Investment Management (UK), C‑231/19, EU:C:2020:513, paragraph 23 and the case-law cited).
To that end, as the Advocate General observed in points 22 to 33 of her Opinion, it is necessary to identify the characteristic elements of the transaction in question (judgments of 29 March 2007, Aktiebolaget NN, C‑111/05, EU:C:2007:195, paragraph 22, and of 18 January 2018, Stadion Amsterdam, C‑463/16, EU:C:2018:22, paragraph 30), from the perspective of the average consumer (judgment of 19 July 2012, Deutsche Bank, C‑44/11, EU:C:2012:484, paragraph 21 and the case-law cited). The body of evidence relied on for this purpose comprises various elements, the first of which, being of an intellectual nature and of decisive importance, seek to establish whether or not the elements of the operation in question are indivisible (judgment of 28 February 2019, Sequeira Mesquita, C‑278/18, EU:C:2019:160, paragraph 30) and its economic purpose, whether or not this is unique (judgment of 2 July 2020, Blackrock Investment Management (UK), C‑231/19, EU:C:2020:513, paragraph 34), and the second of which, being of a substantive nature and not of decisive importance (see, to that effect, judgment of 25 February 1999, PPC, C‑349/96, EU:C:1999:93, paragraph 31), support, where appropriate, the analysis of the first elements, such as separate access (judgment of 17 January 2013, BGŻ Leasing, C‑224/11, EU:C:2013:15, point 43) or joint access (judgment of 8 December 2016, Stock '94, C‑208/15, EU:C:2016:936, point 33) to the services in question or the existence of a single invoice (order of 19 January 2012, Purple Parking and Airparks Services, C‑117/11, not published, EU:C:2012:29, paragraph 34 and the case-law cited) or a separate invoice (judgment of 18 January 2018, Stadion Amsterdam, C‑463/16, EU:C:2018:22, paragraph 27).
Secondly, an economic transaction constitutes a single supply where one or more elements are to be regarded as constituting the principal supply, while, by contrast, other elements are to be regarded as one or more ancillary supplies which share the tax treatment of the principal supply (judgment of 2 July 2020, Blackrock Investment Management (UK), C‑231/19, EU:C:2020:513, paragraph 29 and the case-law cited).
It follows from the Court’s case-law that the first criterion to be taken into consideration in this respect is the absence of a distinct purpose of the supply from the perspective of the average consumer. Thus, a supply must be regarded as ancillary to a principal supply if it does not constitute for customers an end in itself but a means of better enjoying the principal service supplied (judgment of 2 July 2020, Blackrock Investment Management (UK), C‑231/19, EU:C:2020:513, paragraph 29 and the case-law cited).
The second criterion, which in fact constitutes evidence of the first, is that account should be taken of the respective value of each of the benefits making up the economic transaction, one being minimal or even marginal in relation to the other (see, to that effect, judgment of 22 October 1998, Madgett and Baldwin, C‑308/96 and C‑94/97, EU:C:1998:496, paragraph 24).