Joined Cases C-443/04 and C-444/04

H.A. Solleveld

and

J.E. van den Hout-van Eijnsbergen

v

Staatssecretaris van Financiën

(Reference for a preliminary ruling from the

Hoge Raad der Nederlanden)

(Sixth VAT Directive – Article 13A(1)(c) – Exemptions – Provision of medical care in the exercise of the medical and paramedical professions – Therapeutic treatments given by a physiotherapist and a psychotherapist – Definition by the Member State concerned of paramedical professions – Discretion – Limits)

Summary of the Judgment

Tax provisions – Harmonisation of laws – Turnover taxes – Common system of value added tax – Exemptions provided for in the Sixth Directive

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

Article 13A(1)(c) of Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes must be interpreted as meaning that it confers on the Member States the discretion to define the paramedical professions and the medical care coming within the scope of such professions for the purpose of the exemption laid down by that provision. However, the Member States must, in the exercise of that discretion, comply with the objective pursued by the said provision, which is to ensure that the exemption applies solely to services provided by persons with the required professional qualifications, and the principle of fiscal neutrality.

National legislation which excludes the profession of psychotherapist from the definition of the paramedical professions is contrary to the said objective and principle only to the extent that psychotherapeutic treatments would, if carried out by psychiatrists, psychologists or any other medical or paramedical profession, be exempt from value added tax, whereas, if carried out by psychotherapists, they can be regarded as being of equivalent quality having regard to the professional qualifications of the latter, a matter which it is for the referring court to determine.

National legislation which excludes certain specific medical care activities, such as treatments using disturbance field diagnostics carried out by physiotherapists, from the definition of that paramedical profession is contrary to the said objective and principle only to the extent that such treatments would, if carried out by doctors or dentists, be exempt from value added tax, whereas, carried out by physiotherapists, they can be regarded as being of equivalent quality having regard to the professional qualifications of the latter, a matter which it is for the referring court to determine.

(see para. 51, operative part)