Staatssecretaris van Financiën v Stichting Kinderopvang Enschede.
Date: 2006-02-09
13. As a preliminary point, it should be noted that, according to the case-law of the Court, the exemptions provided for in Article 13 of the Sixth Directive 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, in particular, Case C-498/03 Kingscrest Associates and Montecello  [2005] ECR I-4427, paragraph 29, and Joined Cases C-394/04 and C-395/04 Ygeia [2005] ECR I-0000, paragraph 15). Those exemptions constitute independent concepts of Community law whose purpose is to avoid divergences in the application of the VAT system from one Member State to another (see, in particular, Case C-76/99 Commission v France [2001] ECR I-249, paragraph 21, and Ygeia , cited above, paragraph 15).
14. Moreover, the purpose of Article 13A of the Sixth Directive is to exempt from VAT certain activities which are in the public interest. However, that provision grants exemption from VAT not for every activity performed in the public interest, but only for those which are listed therein and described in great detail (Case C-8/01 Taksatorringen  [2003] ECR I-13711, paragraph 60, and Ygeia , paragraph 16).
22. The Netherlands Government refers with good reason in this regard to the wording of Article 13A(2)(b) of the Sixth Directive, which provides that ‘the supply of services or goods shall not be granted exemption as provided for in (1)(b), (g), (h), (i), (l), (m) and (n) above if … it is not essential to the transactions exempted’. It is apparent from these provisions that the main transaction, to which the supply of goods or services in question is closely linked, must itself also be an exempted transaction. In the case in the main proceedings, the exemption of the Foundation’s services as intermediary between the parents of the child being cared for and the host parents thus presupposes that the childcare service provided by the latter is itself exempt from VAT.
23. Given that host parents are independent persons who cannot be regarded as bodies governed by public law, the childcare services can be covered by the exemption under Article 13A(1)(g) or (h) of the Sixth Directive only to the extent that they are provided by ‘organisations recognised as charitable by the Member State concerned’. The national authorities have a discretion in this regard which they must exercise in accordance with Community law (see, to that effect, Kingscrest Associates and Montecello , cited above, paragraphs 48 to 53). In this connection the Court has held inter alia that the expression ‘other organisations recognised as charitable by the Member State concerned’ in Article 13A(1)(g) of the Sixth Directive does not exclude from that exemption natural persons running a business, in that case a private entity seeking to make a profit ( Kingscrest Associates and Montecello , paragraph 36). It is for the national court to determine whether the childcare services provided by host parents satisfy the conditions for exemption set out in those provisions, in particular the condition that the service provider must fulfil the criterion of ‘charitable’.
24. Thirdly, in order to be exempt from VAT under Article 13A(1)(g) to (i) of the Sixth Directive, the Foundation’s services as intermediary must be closely linked to the childcare services. The Commission and the Netherlands Government deny that such a link exists, relying in particular on Case C-287/00 Commission v Germany  [2002] ECR I-5811, in which exemption under Article 13A(1)(i) of the Sixth Directive for research activities carried out for consideration by public institutions of higher education was disallowed. The Court held, at paragraph 49 of that judgment, that the supply of such services was not closely related to university education, after having stated, at paragraph 48, inter alia that ‘although the undertaking of such projects may be regarded as of great assistance to university education, it is not essential to attain its objective’.
25. Whatever the interpretation given to the expression ‘closely linked’ under Article 13A(1)(g) and (h) of the Sixth Directive, Article 13A(2)(b) thereof in any event makes exemption conditional on the supply of goods or services concerned being essential to the transactions exempted (see, to that effect, Ygeia , paragraph 26). It follows that, in the case in the main proceedings, the Foundation’s services as intermediary may be exempted only where it is established that they are essential to the childcare service.
27. As the Advocate General has correctly noted at points 55 to 57 of his Opinion, the mere fact of keeping a list of all people known to offer childcare and making that list available to parents cannot be described as an essential service. Conversely, if the Foundation’s screening of host parents’ past records, and the fact of providing them with training, result in the selection only of host parents who are competent, trustworthy and such as to provide a higher quality of childcare than parents could otherwise have obtained without using the Foundation’s services, these services could then be regarded as essential to the provision of quality childcare.
28. It is for the national court to determine whether, in the light of the facts of the case before it, the childcare service used by parents on the basis of the Foundation’s services as intermediary between parents and host parents is of such a nature or quality that it would be impossible to obtain a service of the same value without the assistance of an intermediary service such as that offered by the Foundation.
30. The answer to the question referred must therefore be that Article 13A(1)(g) and (h) of the Sixth Directive, read together with Article 13A(2)(b) thereof, must be interpreted as meaning that services as an intermediary between persons seeking, and persons offering, a childcare service, provided by a body governed by public law or an organisation recognised as charitable by the Member State concerned, may benefit from exemption under those provisions only where:
– the childcare service itself meets the conditions for exemption laid down in those provisions;
– that service is of such a nature or quality that parents could not be assured of obtaining a service of the same value without the assistance of an intermediary service such as that which is the subject-matter of the dispute in the main proceedings;
– the basic purpose of the intermediary services is not to obtain additional income for the service provider by carrying out transactions which are in direct competition with those of commercial enterprises liable for VAT.
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