C-353/85
ECLI:EU:C:1987:332
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- Súdny dvor Európskej únie
- IČS
- 61985CC0353
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- eur-lex.europa.eu ↗
COMMISSION v UNITED KINGDOM
OPINION OF MR ADVOCATE GENERAL MANCINI delivered on 7 July 1987 *
Mr President, in connection with or on the basis of Members of the Court, medical or paramedical services, the United Kingdom has failed to fulfil its obligations 1. The Sixth Council Directive of 17 May under Article 13 A (1) (c) of the aforesaid 1977 on the harmonization of the laws of directive. the Member States relating to turnover taxes: uniform basis of assessment 2. In the first place, the United Kingdom (77/388/EEC) (Official Journal 1977, L has objected that the Commission's 145, p. 1) lists in Article 13 A (1) 'certain application is inadmissible.
The United activities in the public interest' which, Kingdom contends that the Commision did precisely in view of the fact that they are in not, either in its letter giving formal notice the public interest, are exempt from of an infringement or in its reasoned value-added tax. The exemptions provided opinion, indicate with sufficient clarity the for are compulsory, for that is clearly the subject-matter or the scope of its charges. only way in which the Community can Nor did it give any indication of the ensure that its 'own resources may be measures which the United Kingdom was collected in a uniform manner in all the supposed to take in order to comply with Member States' (eleventh recital in the the relevant provisions of Community law preamble to the directive). The list refers in or of the reasons on which the particular to 'the provision of medical care Commission's request was based.
In other in the exercise of the medical and para words, the applicant did not place the medical professions . . . ' (Article 13 À (1) United Kingdom in a position to ascertain (c)). the true nature of the infringement it was alleged to have committed, thereby In the United Kingdom, Item 1 of Group 7 impairing the United Kingdom's possibility (Health) of Schedule 6 to the Value-Added of presenting a defence from the very outset Tax Act 1983 exempts from value-added tax of the proceedings. 'the supply of services and, in connection Clearly, the United Kingdom's objection is with it, the supply of goods .
. . ' by persons unfounded. I would recall that, according to registered or enrolled in certain professional the scheme of the procedure under Article registers, such as medical practitioners, 169 of the EEC Treaty, the letter giving dentists, opticians and persons carrying on formal notice has a specific purpose, namely paramedical activities for the purposes of to oblige the Commission to inform the the Professions Supplementary to Medicine State concerned of the essential elements of Act 1960. That means, for instance, that if a the infringement it is alleged to have medical practitioner or an optician in the committed and to request that State to United Kingdom prescribes corrective spec submit its observations on the factual and tacles for a patient and then supplies them legal aspects of those elements. If the letter to the patient, no value-added tax is payable giving formal notice does not in itself lead either on the consultation or on the spec to the settlement of the dispute, the tacles. Commission, having regard to the obser vations submitted by the State concerned, In these proceedings the Commission asks issues a reasoned opinion whose function is the Court to declare that, by exempting to define once and for all the subject-matter from value-added tax certain goods supplied
* Translated from the Italian.
OPINION OF MR MANCINI — CASE 353/85
of the dispute (see the judgment of 27 May concession by the Commission shows that 1981 in Joined Cases 142 and 143/80 both parties correctly determined the Amministrazione delle Finanze dello Stato v subject-matter and the scope of the dispute. Essevi and Salengo [1981] ECR 1413; the The application is therefore admissible. judgment of 15 December 1982 in Case 211/81 Commission v Denmark [1982] ECR
3. With regard to the substance of the case, 4547; the judgment of 31 January 1984 in the United Kingdom maintains that a Case 74/82 Commission v Ireland [1984] systematic reading of Article 13 as a whole ECR 317; and the judgment of 18 March and the principle of equality render the 1986 in Case 85/85 Commission v Belgium Commission's interpretation of indent (c) [1986] ECR 1149).
untenable. The United Kingdom argues that if the wording of indent (c) is compared The reasoned opinion, on the other hand, with that of indent (b), and if it is borne in must be considered to contain a sufficient mind that the expression 'medical care' is statement of reasons where the Commission, used in the English version of both indents, after summarizing the views of the national the inescapable conclusion is that the authorities, defines in sufficiently precise exemption from value-added tax under terms the facts and the reasons which led it indent (c) also covers goods supplied in to conclude that the State concerned connection with the services provided. hadfailed to fulfil its obligations (see the Indent (b) exempts from value-added tax judgments of 14 February 1984 in Case 'hospital and medical care and closely related 325/82 Commission v Germany [1984] ECR activities undertaken by bodies governed by 777 and of 15 December 1982 in Case public law or, under social conditions 211/81, cited above). comparable to those applicable to bodies governed by public law, by hospitals, centres That being so, it is clear from its replies to for medical treatment or diagnosis and the letter giving formal notice and to the other duly recognized establishments of a reasoned opinion that the United Kingdom similar nature' (emphasis added). had fully understood the nature of the infringement which it is alleged to have
committed. In other words, it was aware In those circumstances, the Commission that the Commission had charged it with does not dispute that the goods supplied exempting from value-added tax any supply together with the care provided are exempt of goods connected with the provision of from value-added tax. However — and this medical services and that the exemption in is the point — is not the same kind of care respect of the supply of corrective spectacles also provided in the case of indent (c)? was merely an example, albeit a particularly Moreover, granted that that care is provided glaring one. In its replies, moreover, the in a private consulting room as opposed to a United Kingdom challenges point by point hospital, is the place where the service is the Commission's argument to the effect supplied more important for tax purposes that exemption from value-added tax than the nature of the service?
The answers extends only to the supply of medical to those questions are self-evident, as is the services. Finally, it is untrue, contrary to the fact that the Community legislature cannot United Kingdom's contention, that the alle have intended to apply dissimilar treatment gations were rendered unclear and contra in respect of the same activity. The dictory by the applicant's acknowledgement, conclusion must therefore be drawn that the in the light of the United Kingdom's obser interpretation of indent (c), on which the vations, that exemption from value-added applicant's charge is based, is erroneously tax also covers certain minor supplies of restrictive and, conversely, that the goods which are inseparable from the Value-Added Tax Act 1983 is in conformity
services themselves. On the contrary, that with the requirements of Community law.
COMMISSION v UNITED KINGDOM
The United Kingdom's case is skilfully event, the public interest. That is so in the argued but, in my view, it cannot be upheld. case of supplies linked to welfare and social I would recall that, in order to prevent any security work (indent (g)) or to the abuse and an oversimplified assimilation of protection and education of children and transactions, the Sixth Directive drew a young people (indents (h) and (i)). distinction between the supply of goods and the supply of services (seventh recital in the preamble).
The supply of goods consists of It may therefore be said that, unless the 'the transfer [to a third party] of the right to directive expressly provides otherwise, dispose of tangible property as owner' supplies of goods are riot exempt from (Article 5 (1)). The supply of services is value-added tax even where they are defined in negative terms, that is to say it provided in connection with supplies of includes 'any transaction which does not services that are so exempted. That is constitute a supply of goods' (Article 6 (1)). suitably illustrated by indent (e) which exempts 'services supplied by dental tech nicians in their professional capacity and dental prostheses supplied by dentists and In practical terms, as is well known, that dental technicians'.
It would appear prima distinction is not easy to draw, particularly facie that services supplied by dentists are where the two transactions take place in not exempt from value-added tax, yet that is connection with the same economic activity. not the case. As in the case of medical prac In addition, whilst in other fields of law the titioners, the activities of dentists come problem is resolved by recourse to the within the scope of indent (c) and are criterion of precedence (that is to say by exempt from value-added tax by virtue of determining whether, in relation to the that provision. On the other hand, the
purpose of the activity concerned, the work supply of dental prostheses was excluded by to be done carries more weight than the the directive which requires the supply of goods to be supplied), in the field of goods to be distinguished from the supply taxation, which involves the imposition of of services; hence an express provision was financial burdens, borderline situations tend needed in order to exempt the supply of to be regulated with precision. For instance, such prostheses from value-added tax. Article 5 (5) (a) of the directive treats as supplies '. . . delivery by a contractor .
. . of movable property made or assembled by the Accordingly, in the light of the foregoing contractor from materials or objects analysis, it is legitimate to conclude that, for entrusted to him by the customer for this the purposes of Article 13, the expressions purpose, whether or not the contractor has 'supply of services' and 'supply of goods' provided any part of the materials used'. must be strictly interpreted. It follows that the exemption of the activities referred to in indent (c) — that is to say care provided in the exercise of the medical profession — Against that background, I now turn to the applies only to the supply of goods which
system of exemptions. It is significant, in my are essential for the provision of that view, that the only instance of the supply of service. In other words, that excludes any goods which is exempted as such by Article appliances which, whilst available only with 13 is 'supplies of human organs, blood and a medical prescription, may be selected and milk' (indent (d)). All other transfers, on the purchased after the consultation and are other hand, are taken into consideration therefore instrumental not in enabling a only in so far as they are 'closely linked' or medical practitioner to provide a service but 'incidental' to the supply of services which in enabling the patient to recover the use of are, by nature, in the general or, in any a diseased organ.
OPINION OF MR MANCINI —CASE 353/85
In conclusion, the United Kingdom's error goods connected with such care. It follows, lies in assimilating the commercial transfer in its view, from the principle of equal of the goods needed to achieve the final treatment and from the consistent nature of therapeutic effect to the use of instruments the system that exemption should also which a medical practitioner cannot do extend to goods supplied in connection with without for the proper performance of his the services referred to in indent (c). task. In civil law terms, that means trans forming the practitioner's work from a duty to use certain means ('obligation de That argument, as I said earlier, has a moyens') into a duty to achieve a certain certain appeal. However, the United result ('obligation de résultat'), that is to say Kingdom overlooks the fact that indent (b) taking the view that he is required to supply exempts medical care only in so far as it is not only his professional skills but also the provided by bodies governed by public law goods which are normally obtainable in or other hospital establishments which must certain shops and on which the patient's not 'systematically aim to make a profit' recovery depends. That approach, however, (first indent of Article 13 A (2) (a)). Instead, not only comes into conflict with the law as the activities listed in indent (c) of Article 13 it stands but is also incompatible with the A (1) are carried out 'in the exercise of the system established by the directive, which, medical and paramedical professions' and, for the purposes of value-added tax, clearly consequently, for gain. In my view, that distinguishes between activities carried out difference is sufficient to justify the different in the exercise of a profession and the sale of goods. fiscal treatment accorded to the two kinds of supplies and to explain why, with the exception of the United Kingdom and As we have seen, the United Kingdom's Ireland, no other Member State exempts reply to that finding is that the exemption in from value-added tax spectacles and other indent (b) in respect of 'medical care' appliances which are supplied in connection provided in hospitals covers the supply of with the provision of professional services.
4. In the light of the foregoing considerations , I propose that the Court uphold the application submitted on 19 November 1985 by the Commission of the European Communities against the United Kingdom of Great Britain and Northern Ireland and declare that , by exempting pursuant to Item 1, Schedule 6, Group 7 ( Health ) of the Value-Added Tax Act 1983 supplies of goods provided in connection with the exercise of the medical and paramedical professions, the United Kingdom of Great Britain and Northern Ireland has failed to fulfil its obli gations under Article 13 A (1) (c) of the Sixth Council Directive of 17 May 1977 ( 77 / 388 / EEC ).
The United Kingdom should be ordered to pay the costs pursuant to Article 69 (3) of the Rules of Procedure .