C-167/95

JUDGMENT OF 6. 3.1997 — CASE C-167/95

J U D G M E N T O F T H E C O U R T (Sixth Chamber) 6 March 1997 *

In Case C-167/95,

R E F E R E N C E to the Court under Article 177 of the EC Treaty by the Gerecht- shof te 's-Hertogenbosch (Netherlands) for a preliminary ruling in the proceedings pending before that court between

Maatschap M. J. M. Linthorst, K. G. P. Pouwels and J. Scheres c. s.

and

LINTHORST, POUWELS AND SCHERES ν INSPECTEUR DER BELASTINGDIENST

Advocate General: N . Fennelly, Registrar: L. Hewlett, Administrator,

after considering the written observations submitted on behalf of:

— Maatschap M. J. M. Linthorst, K. G. P. Pouwels and J. Scheres c. s., by R. M. Vermeulen, Tax Adviser,

— the Netherlands Government, by A. Bos, Legal Adviser in the Ministry of For­ eign Affairs, acting as Agent,

— the German Government, by E. Röder, Ministerialrat in the Federal Ministry of Economic Affairs, acting as Agent,

after hearing the Opinion of the Advocate General at the sitting on 28 November 1996,

gives the following

Judgment

1 By order of 18 May 1995, received at the Court on 31 May 1995, the Gerechtshof (Regional Court of Appeal) 's-Hertogenbosch referred to the Court for a prelimi- nary ruling under Article 177 of the EC Treaty a question on the interpretation of Article 9 of the Sixth Council Directive 77/388/EEC of 17 May 1977 on the har- monization of the laws of the Member States relating to turnover taxes — Com- mon system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1; 'the Sixth Directive').

2 That question was raised in proceedings between the partnership M. J. M. Linthorst, K. G. P. Pouwels and J. Scheres c. s. ('Linthorst'), established at Ell (Netherlands), and the Netherlands tax authorities concerning payment of value added tax ('VAT') in respect of services supplied by the partnership outside the Netherlands.

3 It appears from the case-file relating to the main proceedings that Linthorst, in which all the partners are veterinary surgeons, operates a general veterinary prac- tice. In February 1994 Linthorst invoiced traders (cattle farmers) established in Belgium a total of H F L 5 110 for veterinary services. The services, which did not include the supply of medicinal products, related to animals located in Belgium. The Belgian farmers to whom the services were supplied had no fixed establish- ments outside Belgium.

2. However:

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(c) the place of the supply of services relating to:

— valuations of movable tangible property,

— work on movable tangible property,

7 The national court considers that services supplied by veterinary surgeons do not fall within the instances set out in the third or fourth indent of Article 9(2)(c) of the Sixth Directive or within those set out in the third indent of Article 9(2)(e). It therefore takes the view that in this case the main rule laid down by Article 9(1) of the Sixth Directive is applicable, with the result that the place where the services in question were supplied is the place where the supplier of the services has estab­ lished his business.

8 Nevertheless, the Gerechtshof te 's-Hertogenbosch decided to stay proceedings and refer the following question to the Court on the ground that it was essential to have that provision interpreted by the Court with a view to its uniform application having regard to the divergent positions adopted by the tax authorities in some Member States:

'Should Article 9 of the Sixth Directive be interpreted as meaning that the place where a veterinary surgeon supplies his services as such should be deemed to be the place where he has established his business or has a fixed establishment from which the services are supplied or, in the absence of such a place of business or fixed establishment, the place where he has his permanent address or usually resides, or should that article be interpreted as meaning that the place where a vet­ erinary surgeon supplies his services as such is located elsewhere, namely at the place where those services are physically carried out or at the place where the cus­ tomer has established his business or has a fixed establishment to which the service is supplied or, in the absence of such a place, the place where he has his permanent address or usually resides?'

13 The term Valuations', as it is understood in common parlance, signifies — as the German Government and the Commission have pertinently observed — examina­ tion of the physical condition or investigation of the authenticity of a good with a view to estimating its value or quantifying work to be carried out or the extent of damage sustained.

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LINTHORST, POUWELS AND SCHERES ν INSPECTEUR DER BELASTINGDIENST

14 In contrast, the principal function of a veterinary surgeon is to make a scientific assessment of animals' health, take preventive medical action, effect diagnoses and provide therapeutic treatment for sick animals. Although the services provided by a veterinary surgeon may indeed on occasion include estimating the value of an animal or a herd, that cannot be regarded as constituting the task characteristic of a veterinary surgeon's duties. It must therefore be held that the services principally and habitually performed by a veterinary surgeon do not fall within the concept of Valuations' and hence are not covered by the third indent of Article 9(2)(c) of the Sixth Directive.

15 The second instance set out in Article 9(2) which should be considered is 'work on movable tangible property' [fourth indent of Article 9(2) (c)].

16 That phrase, in common with those used in the other language versions of the pro­ vision in question, calls to mind, in common parlance, purely physical action on movable tangible property which is, by nature, in principle neither scientific nor intellectual. Even though the Dutch version is somewhat ambiguous, it must be interpreted consistently with the other language versions.

20 It should be noted that the only common feature of the disparate activities men- tioned in that provision is that they all come under the heading of liberal profes- sions. Yet, as the German Government rightly observed, if the Community legis- lature had intended all activities carried on in an independent manner to be covered by that provision, it would have defined them in general terms.

21 Moreover, if the legislature had intended that provision to cover the medical pro- fession generally, as an activity typically carried out in an independent manner, it would have included it in the list, since, as the national court and the Advocate General in paragraph 22 of his Opinion pertinently observe, other provisions

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of the Sixth Directive, such as in particular the transitional exception provided pursuant to Article 28(3)(b) in conjunction with Annex F, specifically mention the services of veterinary surgeons.

22 It is appropriate to add that, whereas veterinary surgeons' duties sometimes involve advisory or consultancy aspects, that fact is not enough to bring the prin­ cipal and habitual activities of the profession of veterinary surgeon within the con­ cepts of 'consultants' or 'consultancy bureaux' or to cause them to be regarded as 'similar'.

26 The costs incurred by the Netherlands, German and Italian Governments and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the proceedings pending before the national court, the decision on costs is a matter for that court.

O n those grounds,

T H E C O U R T (Sixth Chamber),

in answer to the question referred to it by the Gerechtshof te 's-Hertogenbosch by order of 18 May 1995, hereby rules:

Article 9 of the Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonization of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment must be inter- preted as meaning that the place where the services principally and habitually carried out by a veterinary surgeon should be deemed to be supplied is the place where the supplier has established his business or has a fixed establish- ment from which the services are supplied or, in the absence of such a place of business or fixed establishment, the place where he has his permanent address or usually resides.

Mancini Murray Kakouris