Flashback on ECJ cases C-212/01 (Unterpertinger) – No exemption for Expert medical report

On November 20, 2003, the ECJ issued its decision in the case C-212/01 (Unterpertinger).

Context: Sixth VAT Directive – Exemption for medical care provided in the exercise of the medical and paramedical professions – Expert medical report.

Article in the EU VAT Directive

Article 13A(1)(c) of Sixth Council Directive 77/388/EEC (article 132(1)(c) of the EU VAT Directive 2006/112/EC).

Article 132 (Exemptions for certain activities in the public interest)
1. Member States shall exempt the following transactions:
(c) the provision of medical care in the exercise of the medical and paramedical professions as defined by the Member State concerned;

Facts

Ms Unterpertinger brought an action before the Landesgericht Innsbruck, sitting as an employment and social security court, against the decision of the Pensionsversicherungsanstalt der Arbeiter rejecting her claim for payment of a disability pension. On 3 April 2000, the referring court ordered that various expert medical reports be obtained concerning the state of health of the applicant in the main proceedings and appointed for that purpose a doctor specialising in psychiatry and neurology.
Ms Unterpertinger died on 10 February 2001, by which time the expert reports had already been made and sent to the Landesgericht Innsbruck. According to the order for reference, the subject-matter of the main proceedings is now limited to the question of costs, which is between only the expert and the Pensionsversicherungsanstalt der Arbeiter.
Under Paragraph 77 of the Arbeits- und Sozialgerichtsgesetz (Employment and Social Security Courts Law), which is a special provision of social security law, experts’ fees are borne by the defendant, that is, in the main proceedings, the Pensionsversicherungsanstalt der Arbeiter, irrespective of the outcome of the proceedings. In the course of the hearing on 28 February 2001, that party to the main proceedings disputed the fee note submitted by the medical expert, to the extent that he charged VAT, calculated at the rate of 20%. The expert’s fees, whose justification and amount net of tax were not disputed, have in the meantime been paid without the VAT.
The Gebührenanspruchsgesetz (Austrian law on professional fees) provides that an expert is entitled to payment of VAT on his fees if and to the extent that his services are subject to VAT. Jurisdiction to fix the fees lies with the Landesgericht Innsbruck, which has stated that it will give a written decision concerning the liability to VAT of the services at issue in the main proceedings. An appeal lies against its decision in that regard.
It is in that context that the Landesgericht Innsbruck asks whether the services provided by medical experts are exempt from VAT. It considers that it cannot determine with certainty whether medical examinations intended to establish or to exclude disability or unfitness for work constitute turnover from activity as a doctor within the meaning of Paragraph 6(1)(19) of the UStG 1994. In addition, it points out that that provision transposes into Austrian law Article 13A(1)(c) of the Sixth Directive and must, therefore, be interpreted consistently with that directive.

Questions

1. Is Article 13A(1)(c) of the Sixth Directive to be interpreted as meaning that the exemption from value added tax provided for therein does not apply to turnover from the activity of a doctor which consists in determining the disability, or lack of it, of a person applying for a pension?

2. Is the judgment [in D. v W., cited above] to be interpreted as meaning that medical examinations and expert opinions based on them for the purpose of establishing or excluding disability or unfitness to work do not fall within the scope of application of the provision referred to in Question 1 above, whether or not the doctor who acts as an expert is instructed by a court or a pension insurance institution?

AG Opinion

Article 13A(1)(c) of the Sixth Directive is to be interpreted as meaning that the exemption therein laid down does not cover activities undertaken by a doctor consisting in establishing as an expert appointed by a court or pension insurance institution whether an applicant for a pension is or is not suffering from disability, incapacity to work or invalidity, the purpose of which is the preparation of an expert opinion rather than therapeutic.

Decision

Article 13A(1)(c) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes – Common system of value added tax: uniform basis of assessment, is to be interpreted as meaning that the exemption from value added tax under that provision does not apply to the services of a doctor consisting of making an expert report on a person’s state of health in order to support or exclude a claim for payment of a disability pension. The fact that the medical expert was instructed by a court or pension insurance institution is irrelevant in that respect.

Summary

Article 13A(1)(c) of the Sixth Directive must be interpreted as meaning that the exemption from VAT provided for in that provision does not apply to the activity of a doctor consisting in drawing up an expert report on a person’s state of health in order to determine whether a claim for invalidity benefit is justified or not. The fact that the medical expert has been appointed by a court or by a pension insurance institution makes no difference.

Source