X-GmbH v Finanzamt Z (C-48/19)

Contents

Judgment of the Court (Sixth Chamber)5 March 2020^note(Reference for a preliminary ruling — Taxation — Common system of value added tax — Directive 2006/112/EC — Article 132(1)(c) — Exemptions — Provision of medical care in the exercise of the medical and paramedical professions — Providing services by telephone — Services provided by nurses and medical assistants)In Case C‑48/19,REQUEST for a preliminary ruling under Article 267 TFEU from the Bundesfinanzhof (Federal Finance Court, Germany), made by decision of 18 September 2018, received at the Court on 25 January 2019, in the proceedingsX-GmbHvFinanzamt ZTHE COURT (Sixth Chamber),composed of: M. Safjan, President of the Chamber, L. Bay Larsen (Rapporteur) and N. Jääskinen, Judges,Advocate General: E. Tanchev,Registrar: A. Calot Escobar,having regard to the written procedure,after considering the observations submitted on behalf of– X-GmbH, by G. Burwitz, Rechtsanwalt,– the German Government, by S. Eisenberg, acting as Agent,– the European Commission, by L. Lozano Palacios and L. Mantl, acting as Agents,having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,gives the following

Judgment

1This request for a preliminary ruling concerns the interpretation of Article 132(1)(c) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1).

2The request has been made in proceedings between X‑GmbH and Finanzamt Z (Z Tax Office, Germany), concerning the refusal of the latter to exempt value added tax (VAT) for telephone consultations on various topics relating to healthcare and patient support programmes, by telephone, with patients suffering from chronic or long-term illnesses, provided by X on behalf of statutory health insurance funds.

Legal context

Directive 2006/112

3Article 132(1) of Directive 2006/112 is worded as follows:‘Member States shall exempt the following transactions:…(b) hospital and medical care and closely related activities undertaken by bodies governed by public law or, under social conditions comparable to those applicable to bodies governed by public law, by hospitals, centres for medical treatment or diagnosis and other duly recognised establishments of a similar nature;(c) the provision of medical care in the exercise of the medical and paramedical professions as defined by the Member State concerned;…’

German law

4Paragraph 4 of the Umsatzsteuergesetz (Law on turnover tax) of 21 February 2005 (BGBl. 2005 I, p. 386), as amended by the Law of 19 December 2008 (BGBl. 2008, I, p. 2794), provides:‘The following transactions covered by Paragraph 1(1)(1) shall be exempt:…14. (a) the provision of medical care in the exercise of the profession of doctor, dentist, lay medical practitioner, physiotherapist, midwife or a similar healthcare profession. …’

The dispute in the main proceedings and the questions referred for a preliminary ruling

5X is a limited liability company established under German law. In February 2014, it provided telephone consultations on various topics relating to healthcare and patient support programmes, also conducted by telephone, with patients suffering from chronic or long-term illnesses, on behalf of statutory health insurance funds.

6Those services were carried out by nurses and medical assistants, having also, mostly completed training as a so-called ‘health coach’. In over one third of the cases, a doctor was also consulted, who assumed responsibility for the consultation, or in the event of a request for specific advice, provided instructions or a second opinion.

7The telephone consultation services offered the insured persons the possibility of contacting X’s employees at any time to request additional information. If callers sought medical advice, those employees would make a software-assisted assessment, carried out by means of targeted questions which allowed them to assess the medical context of the insured person’s specific case, then advised the insured person on his therapeutic situation, giving him explanations on the diagnoses and possible therapies, or, further, suggesting changes to behaviour and treatment.

8The cases which had been closed were randomly submitted to the medic responsible, who reviewed, in particular, the logic, from a medical point of view, of the documented facts.

9In the context of the patient support programmes, the health insurance funds selected the participants on the basis of accounting data and symptoms, then they were contacted by those health insurance funds and were admitted to a programme if the participants so wished. Those programmes made it possible for the participants to be contacted by telephone, during a three to twelve month period, by X’s employees and to call those employees, at any time, in order to receive information regarding their symptoms and specific situation.

10The referring court explains that the objective of the support programmes was principally to improve, for the participants and their relatives, understanding of the illness, observance of the use of medication followed or the participation in other types of treatment, to avoid taking the wrong medication and to bring about an appropriate response to possible worsening symptoms and social isolation. The aim of those programmes was to improve the management of costs with respect to patients, in particular by significantly reducing the number of new hospital admissions, to support the parents of patients at risk of suffering from attention deficit disorders and to reduce the risk of secondary complications.

11With regard to those activities, X has requested to benefit from an exemption from turnover tax for the period at issue in the main proceedings. The Z Tax Office took the view that the services concerned were taxable.

12X, whose application before the court with jurisdiction at first instance was dismissed, brought an appeal on a point of law (‘Revision’) before the Bundesfinanzhof (Federal Finance Court, Germany).

13In the first place, the referring court is uncertain as to whether it may take the view that consultations of a medical nature conducted by telephone, which are not in connection with specific medical treatment, or take place solely as preliminary discussions prior to such treatment, must be subject to VAT, or whether it must apply the case-law of the Court of Justice which excludes from the exemption laid down in Article 132(1)(c) of Directive 2006/112/EC, treatments performed merely to satisfy general needs, such as leisure, wellness or cosmetic purposes.

14In the second place, the referring court seeks to ascertain whether the qualification requirements of medical and paramedical professions, within the meaning of Article 132(1)(c) of that directive, as defined by the Member State concerned for ‘conventional’ medical care also apply to medical care that is provided without physical contact or whether additional requirements are necessary in that respect.

15In those circumstances, the Bundesfinanzhof (Federal Finance Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:(1) In circumstances such as those in the main proceedings, in which a taxable person advises insured persons on various topics relating to healthcare and medical conditions by telephone on behalf of health insurance funds, does this constitute an activity that falls within the scope of Article 132(1)(c) of [Directive 2006/112]?(2) In circumstances such as those in the main proceedings, is it sufficient, in relation to the services referred to in question 1 and in respect of turnover in the context of ‘patient support programmes’, for the required evidence of professional qualifications if the consultations over the telephone are conducted by ‘health coaches’ (medical assistants, nurses) and a doctor is consulted in approximately one third of the cases?’

Consideration of the questions referred

The first question

16By its first question, the referring court asks, in essence, whether services provided by telephone, consisting of providing advice relating to healthcare and medical conditions, are able to come within the VAT exemption referred to in Article 132(1)(c) of Directive 2006/112.

17It follows from a literal interpretation of Article 132(1)(c) of that directive that the provision of a service must be exempt if it satisfies two conditions, namely, first, that it constitutes provision of medical care and, second, that it is carried out in the exercise of the medical and paramedical professions as defined by the Member State concerned (see, to that effect, judgment in Belgisch Syndicaat van Chiropraxie and Others, C‑597/17, EU:C:2019:544, paragraph 19 and the case-law cited).

18Since the first question regards the nature of the service provided, it is necessary to define the scope of the first of those conditions.

19In that regard, it must be noted that Article 132(1)(c) of Directive 2006/112 refers solely, in the wording of the first condition set, to the concept of ‘the provision of medical care’, without any mention of factors in relation to the location of the provision of the service.

20It follows from the case-law of the Court that although Article 132(1)(b) of that directive concerns services supplied in a hospital environment, Article 132(1)(c) of that directive covers services provided outside such a framework, both at the private address of the person providing the care and at the patient’s home or at any other place (see, to that effect, judgment of 18 September 2019, Peters, C‑700/17, EU:C:2019:753, paragraph 21 and the case-law cited).

21Accordingly, it follows from that that, for Article 132(1)(c) of that directive to apply, a service which fulfils the conditions referred to in that provision is capable of coming within the exemption laid down in that provision, regardless of where it is provided.

22Furthermore, the Court has reiterated that it would be contrary to the principle of fiscal neutrality to make medical tests prescribed by general practitioners subject to a different VAT scheme depending on where they are carried out when they are equivalent from a qualitative point of view in the light of the professional qualifications of the service providers in question (judgment of 18 September 2019, Peters, C‑700/17, EU:C:2019:753, paragraph 29 and the case-law cited).

23In view of all of those factors, it should be noted that the provision of care provided by telephone is capable of coming within the VAT exemption laid down in Article 132(1)(c) of Directive 2006/112 if it fulfils all of the conditions for applying that exemption.

24Furthermore, that consideration is consistent with the underlying aims of Article 132(1)(c) of that directive, namely the reduction of the cost of healthcare and making healthcare more accessible to individuals (see, to that effect, judgment of 13 March 2014, Klinikum Dortmund, C‑366/12, EU:C:2014:143, paragraph 28 and the case-law cited).

25Nonetheless, it is possible that a taxable person provides both services that are exempt from VAT, by fulfilling the concept of ‘the provision of medical care’ and others that are subject to that tax (see, to that effect, judgments of 20 November 2003, Unterpertinger, C‑212/01, EU:C:2003:625, paragraph 38; of 20 November 2003, D’Ambrumenil and Dispute Resolution Services C‑307/01, EU:C:2003:627, paragraph 56; and of 21 March 2013, PFC Clinic, C‑91/12, EU:C:2013:198, paragraphs 31 and 32).

26Consequently, it will be for the referring court to determine to what degree the telephone consultations at issue in the main proceedings match the concept of ‘the provision of medical care’ under Article 132(1)(c) of Directive 2006/112.

27To that end, it will be for the referring court to determine whether those consultations have a therapeutic purpose, as that is the determining factor in whether the provision of a medical service must be exempt from VAT (see, to that effect, judgments of 20 November 2003, Unterpertinger, C‑212/01, EU:C:2003:625, paragraphs 40 and 42, and of 27 April 2006, Solleveld and van den Hout-van Eijnsbergen, C‑443/04 and C‑444/04, EU:C:2006:257, paragraph 24 and the case-law cited).

28In that regard, according to settled case-law, the concept of ‘provision of medical care’ is intended to cover services that have as their aim the diagnosis, treatment and, in so far as possible, cure of diseases or health disorders (judgments of 14 September 2000, D., C‑384/98, EU:C:2000:444, paragraph 18, and of 18 September 2019, Peters, C‑700/17, EU:C:2019:753, paragraph 20 and the case-law cited).

29However, it does not necessarily follow that the therapeutic purpose of a service must be confined within a particularly narrow compass (judgments of 10 June 2010, Future Health Technologies, C‑86/09, EU:C:2010:334, paragraph 40 and the case-law cited, and of 21 March 2013, PFC Clinic, C‑91/12, EU:C:2013:198, paragraph 26). Thus, medical services provided for the purpose of protecting including maintaining or restoring human health, may benefit from the exemption under Article 132(1)(c) of Directive 2006/112 (judgments of 10 June 2010, Future Health Technologies, C‑86/09, EU:C:2010:334, paragraphs 41 and 42 and the case-law cited, and of 21 March 2013, PFC Clinic, C‑91/12, EU:C:2013:198, paragraph 27).

30In the context of that analysis, the lack of a medical prescription prior to the telephone consultation or specific medical treatment subsequent to it, is insufficient, having regard to the case-law referred to in the preceding paragraph, to determine whether such a consultation comes within the concept of ‘provision of medical care’ within the meaning of Article 132(1)(c) of that directive.

31In the present case, consultations which consist of explaining diagnoses and potential therapies, as well as suggesting changes to treatment followed, since they enable the person concerned to understand his or her medical situation, and, as the case may be, to take action as a result, in particular by taking, or not taking particular medication, are likely to have a therapeutic purpose and, on that basis, to come within the concept of ‘provision of medical care’ within the meaning of Article 132(1)(c) of that directive.

32In contrast, services which consist of communicating information on diseases and therapies, but which are not likely, as a result of their general nature, to contribute to protecting, maintaining or restoring human health, cannot come within that concept.

33Similarly, services which consist of providing information of an administrative nature, such as the contact details of a doctor or those of a conciliation body, cannot be treated in the same way as services coming under the exemption laid down in Article 132(1)(c) of that directive.

34In the light of all the foregoing considerations, the answer to the first question is that Article 132(1)(c) of Directive 2006/112 must be interpreted as meaning that services provided by telephone, consisting of giving advice regarding health and illnesses, are capable of coming within the exemption laid down in that provision, provided that they have a therapeutic purpose, which is for the referring court to determine.

The second question

35It must be noted, as a preliminary point, that, according to settled case-law of the Court, in the procedure laid down by Article 267 TFEU providing for cooperation between national courts and the Court, it is for the latter to provide the national court with an answer which will be of use to it and enable it to determine the case before it and that, to that end, the Court may have to reformulate the question referred to it (judgment of 25 July 2018, Dyson, C‑632/16, EU:C:2018:599, paragraph 47 and the case-law cited).

36In the present case, the referring court indicates that no national legislation in force concerns the professional requirements for the provision of medical consultations by telephone, and that, as regards patient support programmes, recommendations, which do not have a binding effect, refer to the practitioners who may be involved, without specifically citing nurses or medical assistants. In those circumstances, the referring court takes the view that it could be envisaged that solely the provision of medical care carried out by telephone, in respect of which a doctor is consulted, could benefit from the VAT exemption.

37Thus, by its second question, the referring court asks, in essence, whether due to the fact that the care is being provided by telephone, the nurses and medical assistants who provide that medical care must be required to have additional professional qualifications, so that that provision of care may benefit from the exemption under Article 132(1)(c) of Directive 2006/112.

38It should be noted that this question seeks to clarify the scope of the second of the two conditions laid down in Article 132(1)(c) of that directive, as reiterated in paragraph 17 of the present judgment, which insist on the fact that the provision of medical care be carried out ‘in the exercise of the medical and paramedical professions as defined by the Member State concerned’.

39In that regard, it should be recalled that it is apparent from the wording of Article 132(1)(c) of that directive that the concept of ‘medical and paramedical professions’ is not defined, but instead it refers to the definition used in the national law of the Member States (judgments of 27 April 2006, Solleveld and van den Hout-van Eijnsbergen, C‑443/04 and C‑444/04, EU:C:2006:257, paragraph 28, and of 27 June 2019, Belgisch Syndicaat van Chiropraxie and Others, C‑597/17, EU:C:2019:544, paragraph 23).

40In those circumstances, the Member States enjoy, particularly with a view to ensuring a correct and simple application of the exemption under Article 132(1)(c) of that directive, a discretion to decide which professions involved in the provision of medical care are exempt from VAT and, in particular, determining which qualifications these professions require (see, to that effect, judgments in Solleveld and van den Hout-van Eijnsbergen, C‑443/04 and C‑444/04, EU:C:2006:257, paragraphs 29, 30 and 32, and in Belgisch Syndicaat van Chiropraxie and Others, C‑597/17, EU:C:2019:544, paragraph 24).

41That discretion is not however unlimited, as Member States must take account, first, of the intended aim of that provision, which is to ensure that the exemption applies only to medical care provided by practitioners with the required professional qualifications and, second, of the principle of fiscal neutrality (see, to that effect, judgment of 27 April 2006, Solleveld and van den Hout-van Eijnsbergen, C‑443/04 and C‑444/04, EU:C:2006:257, paragraphs 31, 36 and 37, and of 27 June 2019, Belgisch Syndicaat van Chiropraxie and Others, C‑597/17, EU:C:2019:544, paragraph 25).

42In the first place, the Member States must ensure that the exemption laid down in that provision is applied only to the provision of medical care of sufficiently high quality (see, to that effect, judgment of 27 April 2006, Solleveld and van den Hout-van Eijnsbergen, C‑443/04 and C‑444/04, EU:C:2006:257, paragraph 37, and of 27 June 2019, Belgisch Syndicaat van Chiropraxie and Others, C‑597/17, EU:C:2019:544, paragraph 26).

43In that regard, the requirement of sufficiently high quality applies independently of the means of communication chosen for the provision of the care.

44It is accordingly for the Member States to determine the professional qualifications enabling the providers concerned to offer sufficiently high quality care, as the case may be, by requiring the latter to acquire additional professional qualifications compared to those which are necessary for the provision of medical care other than by telephone.

45In the second place, the Member States must respect the principle of fiscal neutrality, which precludes treating similar service providers, which are thus in competition with each other, differently for VAT purposes (judgments of 27 April 2006, Solleveld and van den Hout-van Eijnsbergen, C‑443/04 and C‑444/04, EU:C:2006:257, paragraph 39 and the case-law cited, and of 27 June 2019, Belgisch Syndicaat van Chiropraxie and Others, C‑597/17, EU:C:2019:544, paragraph 28).

46Thus, in particular, it is for the referring court to determine whether the exclusion of consultations and patient support programmes performed by nurses and medical assistants from the exemption under Article 132(1)(c) of Directive 2006/112 is contrary to the principle of fiscal neutrality in so far as, due to their professional qualifications, those practitioners are able to ensure that such services provided by telephone are of an equivalent quality level to that of services performed by other providers using the same means of communication.

47In the light of all of the foregoing considerations, the answer to the second question is that Article 132(1)(c) of Directive 2006/112 must be interpreted as meaning that it does not require, due to the fact that the provision of medical care is provided by telephone, nurses and medical assistants who provide those services to be subject to additional professional qualification requirements, so that those services may benefit from the exemption laid down in that provision, provided that those services may be considered to be of an equivalent quality level to that of services provided by other providers using the same means of communication, which is for the referring court to determine.

Costs

48Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

Operative part

On those grounds, the Court (Sixth Chamber) hereby rules:

1.Article 132(1)(c) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as meaning that services provided by telephone, consisting of giving advice regarding health and illnesses, are capable of coming within the exemption laid down in that provision, provided that they have a therapeutic purpose, which it is for the referring court to determine.

2.Article 132(1)(c) of Council Directive 2006/112 must be interpreted as meaning that it does not require, due to the fact that the provision of medical care is provided by telephone, nurses and medical assistants who provide those services to be subject to additional professional qualification requirements, so that those services may benefit from the exemption laid down in that provision, provided that those services may be considered to be of an equivalent quality level to that of services provided by other providers using the same means of communication, which is for the referring court to determine.