C-141/00

KÜGLER

O P I N I O N OF ADVOCATE GENERAL TIZZANO delivered on 27 September 2 0 0 1 1

I — Introduction II — Legal background

A — Community legislation

1. By order of 3 February 2000 received at 2. Article 13 (entitled 'Exemptions within the Registry of the Court on 14 April 2000, the territory of the country'), part A the Bundesfinanzhof (Federal Finance (entitled 'Exemptions for certain activities Court) (Federal Republic of Germany) in the public interest'), paragraphs 1(b), (c), s u b m i t t e d three q u e s t i o n s u n d e r and (g) and 2(a) and (b) of the Sixth Article 234 EC seeking an interpretation Directive provide that: of Article 13A(1)(c) and (g) of the Sixth VAT Directive 2 in the context of a dispute between a company providing out-patient care services (Ambulanter Pflegedienst Kügler GmbH, hereinafter referred to as ' 1 . Without prejudice to other Community 'Kügler' or 'the applicant') and the Finanz- provisions, Member States shall exempt the amt für Körperschaften I, Berlin (Corporate following under conditions which they Tax Office, hereinafter referred to as the shall lay down for the purpose of ensuring 'Finanzamt' or the 'administration'). The the correct and straightforward application answers provided by the Court will help the of such exemptions and of preventing any court of reference to decide whether the possible evasion, avoidance or abuse: medical services and out-patient care pro- vided by Kügler from 1988 to 1990 should be subject to value added tax (hereinafter 'VAT'), as the administration contends, or should enjoy tax exemption under the aforesaid provisions, as the applicant claims.

— they shall charge prices approved by the public auth- orities or which do not exceed such approved prices or, in respect of those services not subject to approval, prices lower than those charged for similar services by commercial 2. (a) Member States may make the enterprises subject to value granting to bodies other than those added tax, I - 6838

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— exemption of the services con- B — National legislation cerned shall not be likely to create distortions of compe- tition such as to place at a disadvantage commercial enterprises liable to value 3 . U n d e r t h e f i r s t s e n t e n c e of added tax. Paragraph 4(14) of the Umsatzsteuergesetz of 1980 (Law on Turnover Tax, hereinafter 'the UStG' 3),

'transactions arising from pursuit of the profession of doctor, dentist, natural medi- (b) The supply of services or goods shall cal practitioner, physiotherapist, midwife not be granted exemption as provided or a similar professional medical activity for in (1)... (g)... above if: for the purposes of Paragraph 18(1)(1) of the Einkommensteuergesetz (Law on Income Tax) or pursuit of the profession of clinical chemist' 4are to be exempted from such tax.

— it is not essential to the trans- 4. Paragraph 4(16), in the version in force actions exempted, during the period to which the dispute in the main proceedings relates, that is to say from 1988 to 1990, provided that the following were exempt from tax:

'transactions closely linked with the oper- — its basic purpose is to obtain addi- ation of hospitals, diagnostic clinics and tional income for the organisation other bodies providing medical care, diag- by carrying out transactions which are in direct competition with those of commercial enterprises 3 — BGBl. I 1979, p. 1953. liable for value added tax.' 4 — The translation of the national provisions is not official.

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at least two-thirds of cases wholly or under. This does not apply, however, to mainly by the statutory social security general care, activities consisting, for or social welfare authorities in the example, in providing for personal hygiene, previous calendar year'. the preparation of food and feeding, help- ing patients to dress and undress and to get up and go to bed; nor does it apply to domestic help, which includes shopping, cleaning and clothes washing. According to the court of reference, these two latter types of out-patient care could, however, be eligible for tax e x e m p t i o n under 7. As clarification of the provisions Article 4(16) of the UStG as amended by described above, I also note that Paragraph the StÄndG, but only from the date on 4(14) of the UStG refers to Paragraph which that law came into force, that is to 18(1)(1) of the Einkommensteuergesetz say 1 January 1992, because for reasons of (Law on Income Tax, hereinafter 'EStG') 6 equity the amendment could not be applied for the definition of income from 'profes- retrospectively. sional activities'. From the case-law of the Bundesfinanzhof, however, it emerges that the reference has been applied only to the assessment of the nature of the activity in question but not to the classification of income under the law on taxation of earn- ings. It has been deduced from this that the exemption under Paragraph 4(14) of the UStG is not restricted to the professional as an individual but may also be claimed by a partnership or capital company. I I I— Facts and questions for a prelimi- nary ruling

help, domestic assistance and family care, 12. According to the Finanzgericht, no as certified by the Finanzamt in a notice of other conclusion was possible, even relying 23 August 1988 valid until 31 December on the Sixth Directive, and in particular on 1989. subparagraphs (c) and (g) of Article 13A(1) thereof. It contended not only that subparagraph (c) also lays down that the requirements can be met only by natural persons who fulfil the qualification criteria for the medical and paramedical profes- sions, but also that the applicant could not claim the exemption granted to bodies recognised as charitable organisations 10. By means of various notices of assess- within the meaning of subparagraph (g), ment for the period in dispute, the Finanz- since such recognition was not granted to amt determined the turnover tax owed by bodies providing out-patient care until the claimant for the period from 1988 to 1992, when Paragraph 4(16) of the UStG 1990 at a reduced rate on the basis of was amended by the StÄndG. estimated returns. However, as it con- sidered that it was entitled to exemption under Paragraph 4(14) and (16) of the UStG of 1980, Kügler first lodged an objection with the Finanzamt and then brought legal proceedings. Both actions 13. Kügler then appealed to the Bundesfi- were dismissed. nanzhof on a point of law ('Revision') alleging infringement of Paragraph 4(14) and (16) of the UStG of 1980 and Article 13A(l)(c) and (g) of the Sixth Directive.

or "organisation" are used in some provi- the patient and the person providing the sions of Article 13A(1) of the Sixth Direc- care, a relationship which is normally tive whilst in others the activity in question established in the consulting room of that is described by reference to individuals in person' (paragraph 33). their professional capacity, such as the medical and paramedical professions (under (c))...' (paragraph 14). In the same judgment, moreover, the Court added that 'the principle of fiscal neutrality pre- cludes... the possibility [that reliance] on t h e . . . e x e m p t i o n . . . referred to in Article 13A(1)(b) and (g) was dependent on the legal form in which the taxable p e r s o n c a r r i e d on his a c t i v i t y ' 16. Finally, if not all the services provided (paragraph 20). by the applicant can benefit from the exemption under Article 13A(1)(c) of the Sixth Directive, the Bundesfinanzhof asks whether in the present circumstances subparagraph (g) of that provision may be applicable. In that case, however, it is necessary to ask whether the applicant can rely on that provision, given that it was not transposed into national law until after the period to which the tax assess- ments from the Finanzamt relate. However, in view of the fact that according to the case-law of the Court 'where the provisions 15. Secondly, given the various types of of a directive appear, as far as their service provided by Kügler, the court of subject-matter is concerned, to be uncon- reference asks whether, in addition to ditional and sufficiently precise, those medical care, general care and domestic provisions may be relied upon by individ- help can be eligible for the exemption uals as against any national provision under subparagraph (c), at least to the which is incompatible with the directive', 10 extent that they are ancillary to therapeutic the Bundesfinanzhof wonders whether such services. In this regard, the Bundesfinanz- requirements apply in the present case. hof cites a judgment of the Court which, in its opinion, could exclude from the exemp- tion in question all services that do not have a therapeutic effect. In Case 353/85 Commission v United Kingdom, 9 the Court stated that 'the provision of medical care in the exercise of the medical and paramedical professions' constitutes ser- vices 'provided outside hospitals and simi- lar establishments and within the frame- 17. On the basis of these considerations, work of a confidential relationship between the Bundesfinanzhof decided to refer the

2. If the exemption is also applicable to capital companies, does it cover wholly or partially the activities of a capital company in the form of out-patient nursing (therapeutic care, general care 19. In particular, they consider that and domestic help) which is provided Articles 2 and 4 of the Sixth Directive by qualified nurses? militate in favour of such a reply: 1 1the first because it specifies that VAT is levied on sales of goods and services, not on the persons who perform such activities; the second because, in specifying that for the

11 — Under Article 2 of the Sixth Directive, in Title II under the heading 'Scope', 'the following shall be subject to value added tax: 1. the supply of goods or services effected for consider- ation within the territory of the country by a taxable person acting as such; 3. Do the abovementioned services fall 2. the importation of goods'. In contrast, Article 4(1), in Title IV under the heading within the scope of Article 13(A)(1)(g) 'Taxable persons', provides that '"taxable person" shall of Directive 77/388/EEC and can a mean any person who independently carries out in any place any economic activity specified in paragraph 2, taxable person rely on that provision?' whatever the purpose or results of that activity'.

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While it recognised that the literal wording of Article 13(A)(1)(b) and (g) of the Sixth Directive could lend itself to a different interpretation and that 'the terms used to describe the exemptions envisaged by Article 13 of the Sixth Directive are to be interpreted strictly since these constitute 20. Secondly, the parties point out first that exceptions to the general principle that Article 13(A)(1)(c) lays emphasis on the VAT is to be levied on all services supplied type or nature of the activities considered, for consideration by a taxable person' specifically 'medical care', rather than on (paragraph 12), the Court went on to state the legal form of the persons providing that 'it cannot be inferred from the fact that them, and secondly that the indication of Article 13(A)(1) of the Sixth Directive the professional categories authorised to mentions different categories of economic perform such activities depends on the operators that the exemptions provided for definition of the activities themselves. 12 in that provision are confined to legal Furthermore, only natural persons may persons where it refers expressly to activ- exercise an activity on behalf of legal ities undertaken by "establishments" or persons and hence, if natural persons "organisations" [see subparagraphs (b) possess the necessary qualifications and and (g)], whilst in other cases an exemption act in the exercise of their profession, legal may also be claimed by natural persons' persons as well, through them, can perform an economic activity eligible for exemption (paragraph 15). Indeed, the Court further under Article 13(A)(1)(c) of the Sixth stated that 'the terms "establishment" and

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the activities carried on by legal persons, and in particular of those concerning the but meant to extend the scope of those status or identity of the economic agent exemptions to activities carried on by performing the services covered by the individuals' (paragraph 17). 14 exemption' 16 and that 'the terms used to specify the exemptions envisaged by Article 1 3 . . . are to be interpreted strictly'. 17

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reasoning to be employed in the case at independent concepts of Community law issue, but in reverse, that is to say to extend which must be placed in the general context the exemption envisaged under of the common system of VAT introduced, Article 13A(1)(c) to capital companies. by the Directive'. 19 However, I do so for the opposite reason to that cited by the Finanzamt, namely to remind the Court that Articles 2 and 4 of the Sixth Directive, which set the objective and subjective scope of the directive, make no reference to the legal form of the person performing the 25. If, despite everything, the Court were taxable activity. Nor does extending the to consider that the provision was also exemption to cover medical services pro- applicable to legal persons, the Finanzamt vided by legal persons conflict with the maintains that both the shareholders and principle of the strict interpretation of the directors of capital companies should Article 13 of the Sixth Directive, because hold the required medical and paramedical the exemption remains applicable only to qualifications (which in the present case the medical services supplied by qualified staff director of the applicant did not). In the and hence does not lead to the provision opinion of the Finanzamt, only that con- being applied to cases other than those clusion, which was endorsed by the word- indicated in the directive. The opposite ing of the provision, would permit certain interpretation, by contrast, takes for activities to be exempted regardless of the granted the very conclusion that must be legal form of the economic agent. demonstrated.

30. I also note that neither does the case- law cited by the Finanzamt justify the conclusions which the latter reaches. At paragraph 20 of the Bulthuis-Griffioen judgment the Court did not state, as the defendant administration asserts, that the exemptions under Article 13 which do not 29. But not even the wording of the refer to the concept of Organisation' and provision in question supports the con- instead use professional titles are applicable clusion reached by the Finanzamt. As the only to natural persons. In reality, the advocates of the opposite interpretation Court said precisely the opposite; it stated have correctly observed, the wording of that in those cases the exemption 'may also subparagraph (c) does not require that the be claimed by natural persons' (emphasis medical services be supplied by a person added). This means that, even though 'the with a particular legal form. For these activity in question is described by refer- services to be exempted, two conditions ence to individuals in their professional must be met irrespective of the legal form capacity', 22 the exemption could also be of the person in question: that the services claimed for activities provided by an oper- are indeed 'medical services' and that they ator acting in the form of a legal person. 23 are performed by persons meeting the necessary professional requirements. 21 And in following a similar line of argument in the Gregg case the Court considered that exemptions relating to 'establishments' or 'organisations' were applicable to the activ- ities of natural persons in that the con- ditions of 'the existence of an individual- 31. Finally, as regards the Finanzamts ised entity performing a particular func- assertion that if the Court decided to follow the line I have set out the exemption could be granted only on condition that the 20 — The Opinion of Advocate General Cosmas in the Gregg shareholders and directors of the undertak- case goes in the same direction (paragraph 28). 21 — I wish to point out that, with regard to the exemption under Article 13A(1)(b) of the Sixth Directive, which also contains indications about the persons carrying out the exempted activities, Advocate General Cosmas observed 22 — Gregg, paragraph 14. that 'from the general structure of the system of tax 23 — I must point out, however, that in the subsequent Gregg exemptions, it appears clear that the reason for those judgment, as I have indicated above (paragraph 21), the exemptions from tax is the type and conditions of the Court openly adjusted its focus and recognised that even supply of the specific activities, factors which do not where the directive speaks of 'establishment' and 'organi- depend on the legal personality of the operator' (Opinion sation' the exemption is not limited to operations per- in Gregg, paragraph 26). formed by legal persons (paragraph 17).

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prejudice to minor provisions of goods can be deduced with certainty from the which are indissociable from the service Community provision under examination provided' (paragraph 35). On the basis of either. Furthermore, the applicant appears that precedent and drawing inspiration to maintain that the exemptions under from the concept of 'single supply' enunci- subparagraphs (c) and (g) form a consistent ated by the Court in another context, 25 the whole, whose components complement one Commission deduces that the exemption another and must be applied in a similar could be extended to cover such care manner. In the applicant's view, this makes which, although not being 'medical care', it possible to plug any gaps that may be was indissociable from a specific medical encountered in the system of exemptions of treatment. the Sixth Directive as regards the activities in question, favouring the protection of the public interest to which social security and welfare regimes are directed. Hence, according to Kiigler, the exemption under subparagraph (c) also covers general care and domestic help, provided they are sup- plied by qualified nursing staff, while the exemption under subparagraph (g) is valid for all out-patient care, including that performed for therapeutic purposes, irre- 39. The view adopted by Kugler is the spective of whether it is provided by exact opposite. Although I do not fully qualified staff or not.. understand the sometimes opaque argu- mentation, the applicant contests the state- ment of the court of reference on the point in question (see paragraph 8 above) and instead maintains, citing the origins of the relevant national legislation and a variety of concrete examples, first that under German law it is not clear whether the activities involved in general care and domestic help are to be denied the exemp- 2. Assessment tion under subparagraph (c) and secondly that in any case it is not easy to draw a distinction between medical care and other types of general out-patient assistance pro- vided by qualified nursing staff. In their view, no indications useful for that purpose

43. By contrast, as regards the identifica- tion of the types of care that can be included in the notion of medical care for the purposes of subparagraph (c), I believe that the judgment delivered by the Court in the D. case is particularly useful. In that 41. That having been said, I consider that judgment the Court observes that from an the expression 'medical care' must be analysis of all the different language ver- clarified in two respects, namely regarding sions of Article 13(A)(1)(c) of the Sixth the place in which it must be performed in Directive it emerges that all bar the Italian order to benefit from exemption and the version refer to medical care concerning the types of care that actually fall within the health of persons. Moreover, the German, scope of the provision in question. French, Finnish and Swedish versions even use the concept of therapeutic treatment or of care provided to the person. From this the Court deduces that 'the concept of "provision of medical care" does not lend itself to an interpretation which includes medical interventions carried out for a purpose other than that of diagnosing, treating and, in so far as possible, curing 42. On the first point, as the other parties diseases or health disorders' (paragraph 18). a l s o e m p h a s i s e , the w o r d i n g of Article 13(A)(1)(c) contains no useful indi- cation. As we have seen, however, subparagraph (b) of the same article exempts care provided by hospitals, centres for medical treatment or diagnosis and other duly recognised establishments of a 44. Nor can I share the view of the similar nature. Given that by means of applicant that all the care it provides is in these two subparagraphs of the article in the public interest and must therefore be question the directive aims to cover the exempted, not least on the ground that the entire system of exemptions for medical cost, in the Federal Republic of Germany at care in the narrow sense and that least, is borne largely by social security or subparagraph (b) exempts all care provided health insurance funds. In that regard, it is in a hospital setting in a broad sense, it must be concluded that subparagraph (c), for its part, aims to exempt medical care 26 — I wish to point out again that in Case 353/85 the Court speaks of a 'relationship which is normally established in provided outside that setting, both in the the consulting room of the person providing the care' (emphasis added), which seems implicitly to provide also consulting room of the person providing for care provided outside the consulting room.

46. As to exemption of the types of care in question as ancillary to medical care 28 — See Case C-306/94 Régie dauphinoise v Ministre du Budget [1996] ECR I-3695, paragraph 20 et seqq., with regard to Article 19(2), Case C-327/94 Dudda v Finanz- gericht Bergisch Gladbach [1996] ECR I-4595, paragraphs 25-31 with regard to the first indent of 27 — See Case C-149/97 Institute of the Motor Industry v Article 9(2)(c), CPP, op. cit., paragraphs 26-32, on Commissioners of Customs and Excise [1998] ECR I-7053, questions submitted for a preliminary ruling stemming paragraph 18 (emphasis added), which also contains from the application of Article 13B(a) relating to insurance further references, including one to the judgment in Case operations and the supply of services 'related to such 107/84 Commission v Germany [1985] ECR 2655, which operations', and Case C-76/99 Commission v France the Finanzamt also cites. [2001] ECR I-249, paragraphs 22-30, on Article 13A(l)(b).

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the case-law of the Court, 29 such a verifi- scope of subparagraph (g) of Article 13(A)(1) cation of fact cannot be carried out at of the Sixth Directive and whether that Community level but is for the court of provision has direct effect and can therefore reference to carry out. be relied upon by a taxable person before national courts.

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51. The view adopted by Kügler differs that arose with regard to subparagraph (c) only in part. Kügler also emphasises the of the provision, the reference to 'old connection between the activities in ques- people's homes' in subparagraph (g) should tion and welfare and social security work. not, in my opinion, be understood as a According to the applicant, in fact, such a limitation on the relevant activity for the connection is further confirmed not only by purposes of the exemption but as a con- the intrinsic nature of those activities but tribution to the definition of the nature of also by the manner in which they are such activities and hence of the objective financed, given that the related costs are scope of the provision. 30 borne largely by health insurance funds and welfare and social security agencies. The peculiarity of Kügler's position lies in the fact that, in its opinion, all out-patient care in the sense defined by the second question from the court of reference — in other words therapeutic care, general care and domestic help — should be exempted 53. I therefore consider that the reply to the without distinction, not only under first part of the third question should be subparagraph (c) of Article 13(A)(1) as that general care and domestic help fall stated above, but also under subpara- within the scope of Article 13(A)(1)(g) of graph (g), which concerns us here. Indeed, the Sixth Directive. from what one can understand from Kügler's reply to the questions from the court of reference, Kügler maintains that the difference between the two subpara- graphs lies not in the type of exempted services but in the professional qualifi- cation of the persons performing such 2. The second part of the question services.

diverge more widely, at least beyond a the provision cannot be applied to the certain point. There is no disagreement on organisations in question; which implies the fact that the problem arises only for the that it is not 'unconditional' and hence period before 1992, the date on which the lacks one of the essential requirements for StÄndG came into effect, nor on the fact being considered to be directly applicable. that where the provisions of a directive appear, as far as their subject-matter is concerned, to be clear, sufficiently precise and unconditional, those provisions may have direct effect and hence be relied upon by individuals before national courts. 31 As to the remainder, however, the positions of 56. They observe that the case in point is the parties show profound differences of very different from the situation dealt with opinion, as will emerge from the summary by the Court in Becker. That case discussed which I shall now proceed to make. the incidence, for the purposes of the direct applicability of a provision of the directive, of the introductory sentence of Part B of Article 13 (which is identical to that of Part A(1) of the same article; see paragraph 2 above), which alludes to any conditions Member States may lay down for the implementation of the directive; 32 in the present case, by contrast, the provision refers explicitly to an act of the State laying (a) Arguments of the parties down whether, when, on what conditions and to what extent recognition should be granted.

sion for 'organisations recognised as chari- implementing Community directives, are table' but also because any other con- obliged to achieve that result but remain clusion would imply a broad interpretation free to choose the ways and means of of the exemptions under Article 13, which, attaining it. All the more so when, as in the as has been stated several times, are to be present case, the Member State is also interpreted strictly. Moreover, to admit the granted wide powers of discretion as to the possibility of recognition on a case-by-case content of the implementing provision. In basis, implicitly or by administrative the present case, on the one hand the means, would inevitably mean sacrificing Federal Republic of Germany initially con- the principle of legal certainty. sidered that there was no reason to 'recog- nise' the organisations in question but subsequently modified its legislative policy once it realised the growing importance acquired during the 1980s by home nursing provided by private individuals; on the other hand, it took measures in this regard by introducing legislation. Hence in the view of these parties there is no reason to limit the freedom granted to the State by 58. Nor, in their opinion, can third parties, imposing retroactive recognitions obtained such as health insurance funds, grant in forms or under conditions different from recognition when signing agreements for those laid down by the German legislature. the provision of home nursing services by the organisations in question. The recipient of the tax revenue is the State, and only the State can waive a tax by granting an exemption, and under the German consti- tution it can do so only by means of legislation. According to this view, recog- nition granted solely for the purpose of reimbursing expenses associated with the 60. In conclusion, the German Government services provided to the health insurance and the Finanzamt observe that in the funds' contributors can therefore not have present case, given that 'recognition' was any effect in the tax sector, that is to say in granted only from 1992 onwards by means a sector other than the social security of the amendments introduced by the sector. StÄndG, Kügler cannot claim the exemp- tion for the period before that date.

33 — Judgment in Case C-131/97 Carbonari and Others [1999] ECR I-1103, in which the Court ruled on the direct applicability of the Annex to Council Directive 75/363/EEC of 16 June 1975 concerning the coordination 62. Hence, according to the Commission, if of provisions laid down by law, regulation or adminis- trative action in respect of activities of doctors, as amended in a specific case there are sufficient by Council Directive 82/76/EEC of 26 January 1982. Point 1 of the Annex stipulates that the training of indications to state that the conditions laid specialist doctors must be carried out in specific posts down in the directive obtain, there is no recognised by the competent authority, which must lay down the practical and theoretical rules for training. reason to deny the direct applicability of However, the Court stated that 'although the same provision requires that the rules be determined by the the directive. Moreover, it is in that sense competent authorities, the requirements of full-time train- that the Court ruled in the Carbonari case, ing listed under that point are sufficiently precise to enable the national court to determine which of the applicants in which also dealt with the absence of prior the main proceedings belonging to the category of trainee specialists fulfilled the requirements of full-time training in 'recognition' by Member States of certain specialised medicine in accordance with the "coor- forms of training for a professional cat- dination" directive and Directive 82/76 prior to the academic year 1991/92' (paragraph 34). egory (in that instance medical specialists) 34 — On the contrary, as Kugler notes, subparagraphs (b) and prescribed by a Community directive. In (p) of the provision speak of 'duly' recognised situations, whereas that more restrictive adverb does not appear in that case the Court held that despite the subparagraph (g).

65. Finally, the Commission points out that even if the Court were to establish that Article 13(A)(1)(g) is not directly appli- cable, the Federal Republic of Germany would still be required, under Article 10 EC, to take all necessary measures to ensure full compliance with Community law, so that the national court would in any case be required to interpret Article 4(16) of the UStG in the light of the wording and purpose of the Sixth Directive in order to ensure its compatibility therewith. 64. The Commission then excludes the possibility that the direct applicability of the latter can be precluded by the provi- sions of Article 13(A)(2)(a) and (b) of the Sixth Directive. As we have seen (in paragraph 2), the first of these provisions gives Member States the right to make the granting of the exemptions provided for in 66. Following the same line as the Com- the first paragraph of Article 13(A) subject mission but in more specific terms, Kugler to certain conditions; if the State has not also maintains that, in accordance with the availed itself of that right, the uncon- ditional and sufficiently precise nature of 35 — See in support of this the judgment in Joined Cases 231/87 subparagraph (l)(g) does not permit it to and 129/88 Ufficio distrettuale delle imposte dirette di rely, 'as against a taxpayer who is able to Fiorenzuola d'Arda and Others v Comune di Cárpemelo Piacentino and Others [1989] ECR 3233, paragraph 32, in show that his tax position actually falls which the Court was asked to rule on the direct applicability of a provision of the Sixth Directive which within one of the categories of exemption allows the exemption from tax to be excluded subject to certain conditions (see the first and second paragraphs of laid down in the directive, upon its failure Article 4(5) of the Sixth Directive: to adopt the very provisions which are 'States, regional and local government authorities and other bodies governed by public law shall not be con- intended to facilitate the application of that sidered taxable persons in respect of the activities or exemption' (Becker, paragraph 33). The transactions in which they engage as public authorities, even where they collect dues, fees, contributions or second provision, by contrast, lists the payments in connection with these activities or trans- actions. conditions in which the exemption may However, when they engage in such activities or trans- not be granted. In this case too, however, actions, they shall be considered taxable persons in respect of these activities or transactions where treatment as the Commission points out that, in accord- non-taxable persons would lead to significant distortions of competition'). ance with the case-law of the Court, the The Court stated that given the merely conditional nature mere possibility of such limitations does of the limitation, the provision may be relied upon before the national court, although its application involves an not provide grounds for excluding the assessment of economic circumstances.

68. Finally, the applicant points out that the line it advocates is above all more consistent with the objective of the law, in that it makes it possible to limit medical and social security expenses, and hence the contributions which subscribers pay to the 67. In particular, the applicant in the main health insurance funds and the social proceedings states that the services it pro- security bodies, even though the German vides are closely associated with welfare Government retorts that other instruments and social security and that, as the Bun- could be used to limit such expenses. desfinanzhof also states, 37 its activities are financed by health insurance funds and by social security and welfare bodies. More- over, even before 1992 various national provisions, of different kinds but all relat- ing to the social security and welfare sectors, expressly mentioned private oper- ators. These provisions include in particu- (b) Assessment lar those which from the early eighties onwards governed the special relations between on the one hand those providing services such as assistance, including out- patient medical assistance, and on the other the health insurance funds and social security and welfare bodies, in other words 69. I have reported the arguments of the the organisations bearing the greater part parties at some length in order to bring out of the cost of such services. The applicant clearly the terms of the debate which took also cites the legislation of certain Länder, place among them and the nature of the disagreement which divides them. As we have seen, the Commission and the Federal 36 — In particular, Kugler cites the judgments in Cases 29/84 Republic of Germany diverge mainly on a Commission v Germany [1985] ECR 1661 and 361/88 question of principle, namely the possibility Commission v Germany [1991] ECR I-2567. 37 — The Bundesfinanzhof points out, inter alia, that according that a provision such as Article 13(A)(1)(g) to a recent judgment of the Bundesverfassungsgericht be recognised as being directly applicable. (Federal Constitutional Court), if the cost or health services is regularly charged to social security organi- By contrast, the Finanzamt and Kiigler sations, their exemption from tax does not conflict with concentrate more on the factors which, in the objective of Article 4(14) of the UStG (see the judgment in Case 2 BvR 2861/93, UR 1999, p. 498). the case in point, should or should not

38 — Paragraph 30. See also, inter alia, the judgments in Cases C-10/92 Balocchi v Ministero delle Finanze dello Stato (1993) ECR I-5105, paragraph 34, and C-62/93 BF Soupergaz v Creek State [19951 ECR I-1883, paragraph 34. Also with regard to Anicie 13 of the Sixth 71. Having thus delineated the boundaries Directive, see in the same vein the judgment in Case C-346/97 Braathens Sverige v Riksskatteverket [1999] of the central issue raised by the question ECR I-3419, paragraph 31, which relates to Article 8(1) of Council Directive 92/81/EEC of 19 October 1992 on the under examination, I shall now proceed to harmonisation of the structures of excise duties on mineral examine more closely the arguments that oils (OJ 1992 L 316, p. 12), the introductory section of which is identical in substance to that of Article 13A(1) of support the position of the parties, begin- the Sixth Directive, and the judgment in Case C-150/99 Stockholm Lindòpark [20011 ECR I - 4 9 3 , ning with those of the German Govern- paragraphs 29-33, which deals with Article 13B of the ment. Sixth Directive.

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OPINION OF MR TIZZANO — CASE C-141/00

75. The German Government, however, adduces yet more objections to that con- clusion. First, it states that in the Comune 74. If that is the case, the lack of appropri- ate legislative recognition of the organi- sations in question cannot be considered in 39 — I would point out in this regard that in the judgment in the itself such as to prejudice the direct appli- Comune di Carpaneto Piacentino case, where it had to be decided whether a provision of the Sixth Directive (the first cability of the provision, but it must be subparagraph of Article 4(5)) granting tax exemption to 'public bodies' acting 'as public authorities' had direct ascertained whether the law of the Member effect, the Court stated that 'the only criterion making it State involved does not also make it poss- possible to distinguish with certainty [between the activ- ities performed by such bodies 'as public authorities' and ible to reconstruct, by other means, some those engaged in by them as persons subject to private law] is the legal regime applicable under national law' form of recognition of the charitable nature (paragraph 15). Having specified that it is therefore 'for of the organisation, albeit only de facto. the national court to classify the activity at issue' (ibid.), the Court held that the provision had direct effect in that Such verification is necessary, because we 'the bodies and activities in regard to which the rule of treatment as non-taxable persons applies are clearly are dealing here with a right, in the form of defined in that provision' (paragraph 31).

di Carpaneto Piacentino case no state I would point out first and foremost that regulation existed classifying the bodies the concept of 'charitable organisation' is indicated in the relevant provision because not a technical and legal concept like that such classification was made by reference of 'body governed by public law', to take to national law; it could therefore be made an example from the same measure. Hence by the court directly on the basis of such it does not require a legislative definition, law, whereas in the present case specific and the setting of formal identification action by the State is required. I consider, criteria, but can be reconstructed on the however, that this objection is based on the basis of common concepts of the law. same petition of principle that I have Secondly, I would not say that the directive examined and criticised above, in the sense did not provide any indication for recon- that it takes for granted the point that in structing the concept in question. In addi- fact has to be established, namely whether tion to the general indications that can be action by the State is essential in this case. gleaned from a systematic reading of the directive, it seems to me that some indi- cations, albeit indirect ones, can also be deduced from specific provisions. I refer in particular to Article 13(A)(2), of which subparagraph (a), as we have seen in paragraph 2 above, lists a series of con- ditions which the Member States may from 76. Secondly, the German Government time to time apply to the exemptions objects that, again in the Comune di Carp- contained in paragraph 1, hence including aneto Piacentino case but also in the that laid down in subparagraph (g). These Carbonari case cited previously, the con- are, so to speak, 'maximum' conditions, in ditions and requirements for recognition of the sense that the Member States may the qualifications indicated in the relevant decide not to impose them or to impose provisions could be reconstructed on the lesser conditions, but they cannot impose basis of the directive itself in the absence of other or more burdensome conditions. This appropriate state regulations, whereas means that if a body meets these con- Article 13A(1)(g) does not contain any ditions, that is already a useful indication information that can make up for the lack that the requirements of the provision are of measures by the State to classify chari- met or, better still, that there are no table organisations. grounds for possibly precluding recognition of its status as a charitable organisation.

assessed essentially in the light of the law of directive. If anything, a problem of com- the State involved. It will therefore be for patibility with the usual criteria for inter- the national court to assess each case on the preting Community law arises for the basis of the principles of that law, and opposite proposition, given that the provi- above all on the basis of the specific factors sion in subparagraph (g) is an exception to that are conclusive for that purpose, such as the principle that 'the exemptions provided those which the parties in the present case for in Article 13... have their own indepen- have highlighted: the existence of specific dent meaning in Community law... That provisions, whether national or regional, must also be true of the specific conditions legislative or administrative, fiscal or wel- laid down for those exemptions to apply fare; the fact that associations engaging in and in particular of those concerning the the same activities as the applicant already status or identity of the economic agent enjoyed a similar exemption in consider- performing the services covered by the ation of their public interest; the fact that exemption' (see the judgment in Bulthuis- the costs of the services may have been Griffioen, cited above, paragraph 18). In borne largely by statutory health insurance other words, if in doubt it is necessary as funds or by social security or welfare far as possible to opt for an interpretation bodies with which private operators such that respects and, if anything, accentuates as the applicant had contractual relation- the 'independent' nature of the concept in ships, and so forth (see paragraph 67 question, given that such an interpretative above). I repeat, it will certainly not be criterion aims to avoid excesses, in one easy to overcome in this way the impedi- direction or another, in the interpretation ment of the lack of a clear and explicit of the directive and to favour its uniform provision from the State, but for the application. reasons of principle and other specific reasons I have outlined above, I consider that it is not possible, a priori and abso- lutely, to exclude the possibility of such an outcome.

2. The exemption provided for in Article 13(A)(1)(c) of the Sixth Directive is applicable only to the turnover relating to therapeutic care provided by qualified nursing personnel, including such treatment provided on an out -patient basis, and to related services that are strictly necessary and physically and economically indissociable therefrom.

3. (a) General care and domestic help fall within the scope of Article 13(A)(1)(g) of the Sixth Directive.

(b) It cannot be excluded that Article 13(A)(1)(g) of the Sixth Directive has direct effect, even in the absence of relevant legislation in the State concerned, where the national court is able to determine, on the basis of all the conclusive evidence, that the taxpayer is an "organisation recognised as charitable"'. I - 6865