5 March 2020 (*1)

(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 proceedings

THE 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

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

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:

…

(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.

14The referring court raises more specifically the question whether the approach adopted in the judgment of 25 January 2001, Liikenne (C‑172/99, EU:C:2001:59), in which a contract for the provision of a bus transport service covering 7 regional routes for a period of 3 years was at issue, is applicable in the present case. The new operator had purchased the work uniforms of some of the drivers who had transferred to it and, pending delivery of the vehicles ordered, had merely leased two buses from the previous operator for a few months.

In 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.

In 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)‘(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

By 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.

It 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).

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

In 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.

It 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).

Accordingly, 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.

Furthermore, 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).

In 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.

Furthermore, 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).

Nonetheless, 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).

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

35In 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).

36In 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.

37In 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.

38In 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.

39Similarly, 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.

40In 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.

Costs

41Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring 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.

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

Article 1(1) of Council Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses must be interpreted as meaning that, in the context of the takeover by an economic entity of an activity the pursuit of which requires substantial operating resources, under a procedure for the award of a public contract, the fact that that entity does not take over those resources, which are the property of the economic entity previously engaged in that activity, on account of legal, environmental and technical constraints imposed by the contracting authority, cannot necessarily preclude the classification of that takeover of activity as a transfer of an undertaking, since other factual circumstances, such as the taking‑over of the majority of the employees and the pursuit, without interruption, of that activity, make it possible to establish that the identity of the economic entity concerned has been retained, this being a matter for the referring court to assess.

[Signatures]

ECLI:EU:C:2025:140

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