European Commission v Federal Republic of Germany.
Date: 2017-09-21
33


The interpretation according to which the exemption at issue concerns the activities mentioned in Article 132(1)(b) to (e) of Directive 2006/112 is supported by the use that Court made of the term ‘professionals’ in its interpretation of that exemption of the judgment of 11 December 2008, Stichting Centraal Begeleidingsorgaan voor de Intercollegiale Toetsing (C‑407/07, EU:C:2008:713, paragraph 37). In Directive 2006/112, the term ‘profession’ is mainly used in the context of the medical professions.
37


In that context, the Federal Republic of Germany observes that it is clear from the case-law of the Court and, in particular, the judgment of 16 September 2008, Isle of Wight Council and Others (C‑288/07, EU:C:2008:505, paragraphs 35 and 36), that the assessment of the conditions relating to the lack of distortion of competition in Article 13(1) of Directive 2006/112, which is similar to that in Article 132(1)(f) thereof, may be carried out by the national legislature.
43


However, according to the Court’s settled case-law, in interpreting a provision of EU law, it is necessary to consider not only its wording but also the context in which it occurs and the objective pursued by the rules of which it is part (judgments of 26 April 2012Able UK, C‑225/11, EU:C:2012:252, paragraph 22, and 4 April 2017Fahimian, C‑544/15, EU:C:2017:255, paragraph 30 and the case law cited).
44


As regards the context of Article 132(1)(f), it must be stated that that provision appears in Chapter 2, entitled ‘Exemptions for certain activities in the public interest’, in Title IX of that directive. That heading indicates that the exemption provided for in that provision covers only IGPs whose members carry on activities in the public interest.
47


As far as concerns the objective of Article 132(1)(f) in the context of Directive 2006/112, it must be recalled that the purpose of all the provisions of Article 132 of Directive 2006/112 is to exempt certain activities in the public interest from VAT with a view to facilitating access to certain services and the supply of certain goods by avoiding the increased costs that would result if they were subject to VAT (judgment of 5 October 2016, TMD, C‑412/15, EU:C:2016:738, paragraph 30 and the case-law cited).
48


Thus, supplies of services by an IGP is covered by the exemption in Article 132(1)(f) of Directive 2006/112 where those supplies of services directly contribute to activities in the public interest mentioned in Article 132 thereof (see, by analogy, judgment of 5 October 2016, TMD, C‑412/15, EU:C:2016:738, paragraphs 31 to 33).
49


Furthermore, it must be recalled that the exemptions referred to in Article 132 of Directive 2006/112 are to be interpreted strictly, since they constitute exceptions to the general principle that VAT is to be levied on all services supplied for consideration by a taxable person (see, to that effect, judgment of 5 October 2016, TMD, C‑412/15, EU:C:2016:738, paragraph 34 and the case-law cited).
56


Second, according to the case-law of the Court, the purpose of the exemption laid down in Article 132(1)(f) of Directive 2006/112 is ‘to create an exemption from VAT in order to avoid an entity offering certain services from being required to pay that tax when it has found it necessary to cooperate with other entities by means of a common structure set up to undertake activities essential to the provision of those services’ (see, to that effect, judgment of 11 December 2008, Stichting Centraal Begeleidingsorgaan voor de Intercollegiale Toetsing, C‑407/07, EU:C:2008:713, paragraph 37).
64


As a preliminary point, it must be observed that the Member States are not obliged to transpose that criterion literally into their national law (see, by analogy, as regards Article 4(5) of the Sixth Directive, judgment of 17 October 1989, Commune di Carpaneto Piacentino and Others, 231/87 and 129/88, EU:C:1989:381, paragraph 23).
65


Furthermore, in order to determine whether the application of the exemption mentioned in Article 132(1)(f) of Directive 2006/112 to a specific activity is likely to cause distortion of competition, it is certainly possible for the national legislature to lay down rules which are easily managed and supervised by the competent authorities (see, by analogy, judgment of 24 February 2015, Sopora, C‑512/13, EU:C:2015:108, paragraph 33). Under Article 131 of Directive 2006/112, Member States are to lay down conditions to which the exemptions are subject for the purposes of ensuring the correct and straightforward application of those exemptions and of preventing any possible evasion, avoidance or abuse. However, those conditions do not concern the definition of the content of the exemptions laid down by that directive (see, to that effect, judgments of 21 March 2013, Commission v France, C‑197/12, not published, EU:C:2013:202, paragraph 31, and 25 February 2016, Commission v Netherlands, C‑22/15, not published, EU:C:2016:118, paragraphs 28 and 29).
67


Contrary to the Federal Republic of Germany’s claims, it does not follow from the judgment of 16 September 2008, Isle of Wight Council and Others (C‑288/07, EU:C:2008:505), that the assessment of the conditions relating to the absence of distortion of competition allows the exemption in Article 132(1)(f) of Directive 2006/112 to be limited, in a general manner to the level of national legislation. In that judgment, the Court interpreted a different provision from that at issue, namely Article 4(5), second subparagraph, of the Sixth Directive, according to which bodies governed by public law are to be considered taxable persons where treatment as non-taxable persons would lead to significant distortions of competition. In that context, the Court held, in paragraph 40 of that judgment that the treatment of bodies governed by public law as taxable persons, in accordance with that provision, results from the carrying-on, as such, of a given activity, irrespective of whether or not those bodies face competition at the level of the local market on which they engage in that activity. However, it does not follow that the condition relating to the absence of distortion of competition, mentioned in Article 132(1)(f) of Directive 2006/112 allow the scope of that exemption to be limited in a general manner.