Case C‑366/12

Finanzamt Dortmund-West

v

Klinikum Dortmund gGmbH

(Request for a preliminary ruling from the Bundesfinanzhof)

‛Reference for a preliminary ruling — Sixth VAT Directive — Exemptions — Article 13A(1)(b) — Supply of goods — Supply of cytostatic drugs for the treatment of outpatients — Services provided by different taxable persons — Article 13A(1)(c) — Provision of medical care — Drugs prescribed by a doctor working in an independent capacity in a hospital — Closely related activities — Services ancillary to the provision of medical care — Activities physically and economically indissociable’

Summary — Judgment of the Court (Third Chamber), 13 March 2014

Harmonisation of fiscal legislation — Common system of value added tax — Exemptions provided for in the Sixth Directive — Exemption in respect of the provision of medical care in the exercise of the medical and paramedical professions — Scope — Supply of goods prescribed in the course of outpatient cancer treatment by doctors working in an independent capacity in a hospital — Not included — Limits — Supply physically and economically indissociable from the supply of medical care

(Council Directive 77/388, Art. 13A(1)(c))

A supply of goods, such as cytostatic drugs, prescribed in the course of outpatient cancer treatment by doctors working in an independent capacity in a hospital, may not be exempt from value added tax under Article 13A(1)(c) of Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes, as amended by Directive 2005/92, unless that supply is physically and economically indissociable from the principal supply of medical care, which it is for the referring court to determine.

It is true that medical services effected for the purpose of protecting, of maintaining or of restoring human health benefit from the exemption under Article 13A(1)(c) of that directive.

However, the exemptions envisaged in that article are to be interpreted strictly since they constitute exceptions to the general principle that value added tax is to be levied on all services supplied by taxable persons for consideration.

As regards the possibility of exempting a supply of services under that latter provision, apart from minor provisions of goods which are strictly necessary at the time when the care is provided, the supply of drugs and other goods is physically and economically dissociable from the provision of the service and cannot therefore be exempted under that article.

None the less, it cannot be denied that the provision of medical care in the exercise of the medical and paramedical professions, within the meaning of that provision, and the supply of cytostatics, are part of a therapeutic continuum. The supply of drugs, such as cytostatics, is in fact essential at the time of providing the care during the outpatient treatment of cancer, given that otherwise, such a provision of care would have no purpose.

However, despite the therapeutic continuum, that treatment comprises a series of activities and steps, which, although interrelated, are individually distinct. Accordingly, where the patient benefits from more than one service, namely, first, the provision of medical care from the doctor and second, the supply of drugs from the hospital pharmacy, it is difficult to consider them as being indissociable, physically and economically. This is a matter for the referring court to determine.

(see paras 26, 30, 33, 35, 36, 41, operative part)