C-581/19 Frenetikexito

JUDGMENT OF THE COURT (Third Chamber)

4 March 2021 ( *1 )

(Reference for a preliminary ruling – Taxation – Value added tax (VAT) – Directive 2006/112/EC – Article 2(1)(c) – Supplies subject to VAT – Exemptions – Article 132(1)(c) – Provision of medical care in the exercise of the medical and paramedical professions – Nutrition monitoring and advice – Sports, physical well-being and fitness activities – Concepts of a single complex supply, a supply ancillary to the main supply, and independent supplies – Criteria)

In Case C‑581/19,

REQUEST for a preliminary ruling under Article 267 TFEU from the Tribunal Arbitral Tributário (Centro de Arbitragem Administrativa – CAAD) ((Tax Arbitration Tribunal (Centre for Administrative Arbitration) – CAAD), Portugal), made by decision of 22 July 2019, received at the Court on 30 July 2019, in the proceedings

Frenetikexito – Unipessoal Lda

v

Autoridade Tributária e Aduaneira,

THE COURT (Third Chamber),

composed of A. Prechal, President of the Chamber, N. Wahl (Rapporteur), F. Biltgen, L. S. Rossi and J. Passer, Judges,

Advocate General: J. Kokott,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

Frenetikexito – Unipessoal Lda, by R. Monteiro, advogado,

the Portuguese Government, by L. Inez Fernandes and R. Campos Laires and by S. Jaulino and P. Barros da Costa, acting as Agents,

the European Commission, by L. Lozano Palacios and B. Rechena, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 22 October 2020,

gives the following

Judgment

Legal context and the dispute

1This request for a preliminary ruling concerns the interpretation of Article 2(1)(c) and 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 Frenetikexito – Unipessoal Lda and the Autoridade Tributária e Aduaneira (Tax and Customs Authority, Portugal) concerning an additional value added tax (VAT) assessment for nutrition monitoring and advice services and services concerning sports, physical well-being and fitness activities.

Legal context

European Union law

3Article 2(1)(c) of Directive 2006/112 provides that the following are to be subject to VAT:

‘The supply of services for consideration within the territory of a Member State by a taxable person acting as such’.

4Under Article 132(1)(b) of that directive, Member States are to exempt:

‘Hospital and medical care and closely related activities undertaken by bodies governed by public law or, under social conditions comparable with 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’.

5Under Article 132(1)(c) of that directive, Member States are to exempt:

‘The provision of medical care in the exercise of the medical and paramedical professions as defined by the Member State concerned’.

Portuguese law

6Under Article 9(1) of the Código do Imposto sobre o Valor Acrescentado (Code on Value Added Tax), the following are to be exempt from VAT:

‘The supply of services in the exercise of the professions of doctor, dentist, midwife, nurse and other paramedical professions’.

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

7Frenetikexito is a commercial company which, inter alia, manages and operates sports facilities, physical well-being and fitness activities and activities promoting and supporting human health, such as nutrition monitoring and advice or physical evaluation.

8Following its registration with the Entidade Reguladora da Saúde (Regulatory Authority for Health, Portugal), the applicant in the main proceedings provided, in 2014 and 2015, nutrition monitoring services on its premises through a qualified nutritionist certified for that purpose. That nutritionist, who was employed by the applicant in the main proceedings, was available for the supply of those services one day per week. VAT was not invoiced for those services.

9The applicant in the main proceedings offered different programmes in its facilities. Some programmes included only well-being and fitness services, whereas others also included nutrition monitoring. Each customer was able to choose the desired programme and whether or not to take advantage of all the services available under the programme selected. Thus, if a customer had signed up for a nutrition monitoring service, that service would be billed to him or her, irrespective of whether or not it was used or of the number of consultations that took place.

10Furthermore, it was possible to sign up for nutrition monitoring services separately from any other services by paying a certain sum, on the basis of whether or not a customer belonged to a facility run by the applicant in the main proceedings.

11The applicant in the main proceedings drew a distinction, in the invoices it issued, between amounts relating to the physical well-being and fitness service and those relating to the nutrition monitoring service. There was no correspondence between the nutrition monitoring services invoiced and the nutrition consultations.

12In the context of an inspection, the tax and customs authority found that, for the 2014 and 2015 tax years, customers of the applicant in the main proceedings had paid for the nutrition monitoring service even where they had not used it. Therefore, it concluded that the supply of that service was ancillary to the supply of the physical well-being and fitness service. Accordingly, the tax and customs authority decided to apply the same tax treatment as that of the main supply and issue an additional tax assessment plus the corresponding compensatory interest, in the amount of the overall sum of EUR 13 253.05.

13Since the applicant in the main proceedings had not paid those sums, the applicable enforcement procedures were initiated for their recovery, in the context of which the applicant concluded an agreement to pay them in instalments. Nevertheless, since it considered that the physical well-being and fitness services and nutrition monitoring services it supplied were independent, the applicant in the main proceedings brought an action before the referring court seeking a declaration that the additional assessment in question was unlawful.

14In those circumstances the Tribunal Arbitral Tributário (Centro de Arbitragem Administrativa – CAAD) (Tax Arbitration Tribunal (Centre for Administrative Arbitration – CAAD), Portugal) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

Where, as occurs in this case, a company

carries on, principally, fitness and physical well-being activities and, on a secondary basis, human health activities, which include nutrition services, nutrition/dietary advice, fitness assessment services and massages; and

offers its customers plans that include only fitness services and plans that include nutrition services in addition to fitness services,

for the purposes of Article 2(1)(c) of [Directive 2006/112], must the human health activity, and the nutrition service in particular, be regarded as ancillary to the fitness and physical well-being activity, with the effect that the ancillary supply must be given the same tax treatment as the principal supply, or, on the contrary, must the human health activity, and the nutrition service in particular, be regarded as independent of and distinct from the fitness and physical well-being activity, with the effect that the tax treatment established for each of those activities will apply to that activity?

2For the purposes of applying the exemption under Article 132(1)(c) of [Directive 2006/112], must the services listed in that article actually be supplied, or is it sufficient in order for that exemption to apply that they are merely made available, so that use of those services depends solely on the wishes of the customer?’

Admissibility of the request for a preliminary ruling

15In its written observations, the Portuguese Government maintains that the request for a preliminary ruling is inadmissible, since the referring court has failed to provide to the requisite legal standard the information necessary so that a relevant and useful answer may be provided, as required by Article 94(a) of the Rules of Procedure of the Court of Justice.

16In that regard, it should be recalled that, according to the Court’s settled case-law, in the context of the cooperation between the Court of Justice and the national courts, the need to provide an interpretation of EU law which will be of use to the national court means that the national court is bound to observe scrupulously the requirements concerning the content of a request for a preliminary ruling, expressly set out in Article 94 of the Rules of Procedure (judgment of 19 April 2018, Consorzio Italian Management and Catania Multiservizi, C‑152/17, EU:C:2018:264, paragraph 21 and the case-law cited).

17Thus, it is, in particular, essential, as stated in Article 94(a) of the Rules of Procedure, that the order for reference itself contain a summary of the relevant findings of fact as determined by the referring court or, at least, an account of the facts on which the questions are based (judgment of 3 December 2019, Iccrea Banca, C‑414/18, EU:C:2019:1036, paragraph 28 and the case-law cited), and a statement of the reasons which prompted the national court to inquire about the interpretation or validity of certain provisions of EU law and the relationship between those provisions and the national legislation applicable to the main proceedings (order of 5 June 2019, Wilo Salmson France, C‑10/19, not published, EU:C:2019:464, paragraph 15).

18In the present case, the order for reference contains an account of the facts that is sufficient to ensure that both the question referred and the scope of that question can be understood, with the result that the Court may provide the referring court with full guidance on the interpretation of EU law so that it may settle the dispute in the main proceedings. Accordingly, both questions referred for a preliminary ruling are admissible.

Consideration of the questions referred

19By its questions, which must be addressed together, the referring court asks, in essence, whether the combined provisions of Article 2(1)(c) and Article 132(1)(c) of Directive 2006/112 must be interpreted as meaning that a nutrition monitoring service supplied by an authorised and certified professional in sports facilities, potentially in the context of programmes which also include physical well-being and fitness services, constitutes an independent supply of services. It also asks the Court whether the benefit of the VAT exemption laid down in Article 132(1)(c) of that directive requires that the service – in the present case a nutrition monitoring service as defined by the referring court, be actually provided or whether the fact that such a service is made available is sufficient for that purpose.

20It must be observed, at the outset, that the referring court, by raising those questions, appears to have proceeded on the assumption that one of the types of services supplied in the case in the main proceedings, namely the nutrition monitoring service, was capable of falling within the scope of the exemption provided for in Article 132(1)(c) of Directive 2006/112.

21It is therefore necessary, first of all, to determine whether that assumption, which was defended by the applicant in the main proceedings but disputed by the Portuguese Government, and about which the European Commission expressed a nuanced view, is accurate.

22As is clear from settled case-law, the terms used to specify the exemptions in Article 132 of Directive 2006/112 are to be interpreted strictly. Nevertheless, the interpretation of those terms must be consistent with the objectives pursued by those exemptions and comply with the requirements of the principle of fiscal neutrality inherent in the common system of VAT. However, that requirement of strict interpretation does not mean that the terms used to specify the exemptions referred to in Article 132 should be construed in such a way as to deprive them of their intended effect (judgment of 8 October 2020, Finanzamt D, C‑657/19, EU:C:2020:811, paragraph 28 and the case-law cited).

23In the present case, the provision in question must be interpreted in the light of the context in which it is used and of the aims and scheme of Directive 2006/112, with particular regard to the underlying purpose of the exemption which it establishes (see, to that effect, judgment of 13 March 2014, ATP PensionService, C‑464/12, EU:C:2014:139 paragraph 61 and the case-law cited). Thus, the wording of Article 132(1)(c) of that directive, that is ‘the provision of medical care in the exercise of the medical and paramedical professions as defined by the Member State concerned’, does not cover services supplied in a hospital environment, centres for medical treatment or diagnosis and other establishments of a similar nature, exempted under Article 132(1)(b) of that directive, but the medical and paramedical service supplied outside that context, 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, judgments of 10 September 2002, Kügler, C‑141/00, EU:C:2002:473, paragraph 36, and of 10 June 2010, Future Health Technologies, C‑86/09, EU:C:2010:334, paragraph 36).

24It must furthermore be noted that the concept of ‘medical care’ contained in Article 132(1)(b) of Directive 2006/112 and that of ‘the provision of medical care’, referred to in Article 132(1)(c) of that directive, are both intended to cover services that have as their purpose the diagnosis, treatment and, in so far as possible, cure of diseases or health disorders (see judgments of 10 June 2010, Future Health Technologies, C‑86/09, EU:C:2010:334, paragraphs 37 and 38, and of 18 September 2019, Peters, C‑700/17, EU:C:2019:753, paragraph 20 and the case-law cited).

25Therefore, the ‘provision of medical care’, within the meaning of that provision, must necessarily have a therapeutic purpose, since that is what determines whether a medical or paramedical service must be exempt from VAT (see, to that effect, judgment of 5 March 2020, X (VAT exemption for telephone consultations), C‑48/19, EU:C:2020:169, paragraph 27 and the case-law cited), although it does not necessarily follow that that purpose 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).

26Thus, supplies of a medical or paramedical nature carried out with the aim of protecting, including maintaining or restoring, the health of persons may benefit from the exemption provided for in Article 132(1)(c) of Directive 2006/112 (judgment of 5 March 2020, X (VAT exemption for telephone consultations), C‑48/19, EU:C:2020:169, paragraph 29 and the case-law cited).

27The exemption provided for in Article 132(1)(c) of Directive 2006/112 therefore presupposes that two conditions are satisfied, the first relating to the purpose of the supply in question, as recalled in paragraphs 24 to 26 of this judgment, and the second relating to the fact that that supply is provided in the context of the exercise of the medical and paramedical professions as defined by the Member State concerned.

28With regard to the second condition, it is important to determine, as the Portuguese Government and the Commission point out, whether a nutrition monitoring service, such as that at issue in the main proceedings, supplied by a certified professional authorised for that purpose in sports facilities, potentially as part of programmes which also include physical well-being and fitness services, is defined by the law of the Member State concerned (judgment of 27 June 2019, Belgisch Syndicaat van Chiropraxie and Others, C‑597/17, EU:C:2019:544, point 23 and the case-law cited) as being provided in the exercise of a medical or paramedical profession. It is apparent from the information in the order for reference, clarified by the observations of the Portuguese Government, that the service in question was provided by a person with a professional qualification entitling him or her to carry out paramedical activities as defined by the Member State concerned, which will be for the national court to confirm.

29Assuming that this is indeed the case, the focus must be on the purpose of a supply such as that at issue in the main proceedings, which corresponds to the first condition laid down in Article 132(1)(c) of Directive 2006/112. In that regard, it is necessary to bear in mind, when examining that purpose, that the exemptions laid down in Article 132 of that directive are in Chapter 2, headed ‘Exemptions for certain activities in the public interest’, of Title IX of that directive. Thus, an activity cannot be exempted, under an exception to the general principle that VAT is to be levied on all services supplied for consideration by a taxable person (judgments of 21 March 2013, PFC Clinic, C‑91/12, EU:C:2013:198, paragraph 23, and of 21 September 2017, Commission v Germany, C‑616/15, EU:C:2017:721, paragraph 49), if it does not fulfil that purpose based on the public interest, common to all the exemptions listed in Article 132.

30In that regard, it is not disputed that a nutrition monitoring service provided in a sports facility may, in the medium- and long-term or viewed very broadly, be a tool to prevent certain conditions, such as obesity. However, it must be noted that the same applies to exercise itself, the role of which is recognised, by way of example, as limiting the occurrence of cardiovascular diseases. Such a service therefore, in principle, has a health purpose but not, or not necessarily, a therapeutic purpose.

31Accordingly, where there is no indication that it is provided for purposes of prevention, diagnosis, treatment of a condition or restoration of health, and accordingly with a therapeutic purpose, within the meaning of the case-law cited in paragraphs 24 and 26 of the present judgment, which it is for the referring court to determine, a nutrition monitoring service, such as that provided in the case in the main proceedings, does not fulfil the criterion of an activity in the public interest common to all the exemptions laid down in Article 132 of Directive 2006/112 and, consequently, does not fall within the scope of the exemption laid down in Article 132(1)(c) of that directive, with the result that it is, in principle, subject to VAT.

32That interpretation does not contravene the fiscal neutrality principle, which precludes in particular two deliveries of goods or two supplies of services which are identical or similar from the point of view of the consumer and meet the same needs of the consumer, and which are therefore in competition with one another, from being treated differently with regard to VAT (see, to that effect, judgment of 17 December 2020, WEG Tevesstraße, C‑449/19, EU:C:2020:1038, paragraph 48 and the case-law cited), since, in the light of the objective pursued in Article 132(1)(c) of Directive 2006/112, nutrition monitoring services provided with a therapeutic purpose and nutrition monitoring services without such an objective cannot be regarded as identical or similar from the point of view of the consumer and do not fulfil the same needs on the part of that consumer.

33Any other interpretation would have the consequence of extending the scope of the exemption laid down in Article 132(1)(c) of Directive 2006/112 beyond the rationale reflected in the wording of that provision as well as the heading of Chapter 2 of Title IX of that directive. Any service performed in the exercise of a medical or paramedical profession, having, even in a very indirect or distant manner, the effect of preventing certain health conditions, would fall within the exemption laid down by that provision, which would not correspond with the intention of the EU legislature and the requirement that such an exemption be interpreted strictly, as recalled in paragraph 22 of the present judgment. As the Advocate General observed in point 61 of her Opinion, a merely uncertain link with a health condition, without a specific risk of health impairment, cannot suffice in that regard.

34In the light of the foregoing, it must be concluded that, subject to verification by the referring court, a nutrition monitoring service provided under conditions such as those at issue in the main proceedings is not such as to fall within the scope of the exemption laid down in Article 132(1)(c) of Directive 2006/112. Accordingly, there is no need to answer the second question.

35As regards the first question, it cannot be ruled out that, in the light of the taxable nature of such a service, the referring court considers that the question whether or not it is independent of physical well-being and fitness services is relevant for the purpose of determining the respective tax treatment of those services.

36Accordingly, it must be noted that although, in the context of proceedings referred to in Article 267 TFEU, which are based on a clear separation of functions between the national courts and the Court of Justice, it is for those courts, which alone have jurisdiction, inter alia, to establish and assess the facts, to determine, in particular, whether or not a nutrition monitoring service provided under conditions such as those at issue in the main proceedings constitutes a supply of services independent of physical well-being and fitness services and to make all definitive findings of fact in that regard (judgement of 19 December 2018, Mailat, C‑17/18, EU:C:2018:1038, paragraph 35 and the case-law cited), the Court may provide the national courts with all the guidance as to the interpretation of EU law which may be of assistance in adjudicating on the case pending before them (judgment of 17 January 2013, BGŻ Leasing, C‑224/11, EU:C:2013:15, paragraph 33). From that point of view, the following considerations ought to be noted.

37It follows from the Court’s case-law that where an economic transaction comprises a bundle of elements and acts, regard must be had to all the circumstances in which the transaction in question takes place in order to determine whether it gives rise to one or more supplies (see, to that effect, judgment of 25 February 1999, CPP, C‑349/96, EU:C:1999:93, paragraph 28 and the case-law cited), given that, as a general rule, each supply must be regarded as a distinct and independent supply, as follows from the second subparagraph of Article 1(2) of Directive 2006/112 (judgment of 2 July 2020, Blackrock Investment Management (UK), C‑231/19, EU:C:2020:513, paragraph 23 and the case-law cited).

38However, by way of exception to that general rule, first, the transaction which comprises a single supply from an economic point of view should not be artificially split, so as not to distort the functioning of the VAT system. This is why there is a single supply where several elements or acts supplied by the taxable person to the customer are so closely linked that they form, objectively, a single, indivisible economic supply, which it would be artificial to split (judgment of 2 July 2020, Blackrock Investment Management (UK), C‑231/19, EU:C:2020:513, paragraph 23 and the case-law cited).

39To that end, as the Advocate General observed in points 22 to 33 of her Opinion, it is necessary to identify the characteristic elements of the transaction in question (judgments of 29 March 2007, Aktiebolaget NN, C‑111/05, EU:C:2007:195, paragraph 22, and of 18 January 2018, Stadion Amsterdam, C‑463/16, EU:C:2018:22, paragraph 30), from the perspective of the average consumer (judgment of 19 July 2012, Deutsche Bank, C‑44/11, EU:C:2012:484, paragraph 21 and the case-law cited). The body of evidence relied on for this purpose comprises various elements, the first of which, being of an intellectual nature and of decisive importance, seek to establish whether or not the elements of the operation in question are indivisible (judgment of 28 February 2019, Sequeira Mesquita, C‑278/18, EU:C:2019:160, paragraph 30) and its economic purpose, whether or not this is unique (judgment of 2 July 2020, Blackrock Investment Management (UK), C‑231/19, EU:C:2020:513, paragraph 34), and the second of which, being of a substantive nature and not of decisive importance (see, to that effect, judgment of 25 February 1999, PPC, C‑349/96, EU:C:1999:93, paragraph 31), support, where appropriate, the analysis of the first elements, such as separate access (judgment of 17 January 2013, BGŻ Leasing, C‑224/11, EU:C:2013:15, point 43) or joint access (judgment of 8 December 2016, Stock '94, C‑208/15, EU:C:2016:936, point 33) to the services in question or the existence of a single invoice (order of 19 January 2012, Purple Parking and Airparks Services, C‑117/11, not published, EU:C:2012:29, paragraph 34 and the case-law cited) or a separate invoice (judgment of 18 January 2018, Stadion Amsterdam, C‑463/16, EU:C:2018:22, paragraph 27).

40Secondly, an economic transaction constitutes a single supply where one or more elements are to be regarded as constituting the principal supply, while, by contrast, other elements are to be regarded as one or more ancillary supplies which share the tax treatment of the principal supply (judgment of 2 July 2020, Blackrock Investment Management (UK), C‑231/19, EU:C:2020:513, paragraph 29 and the case-law cited).

41It follows from the Court’s case-law that the first criterion to be taken into consideration in this respect is the absence of a distinct purpose of the supply from the perspective of the average consumer. Thus, a supply must be regarded as ancillary to a principal supply if it does not constitute for customers an end in itself but a means of better enjoying the principal service supplied (judgment of 2 July 2020, Blackrock Investment Management (UK), C‑231/19, EU:C:2020:513, paragraph 29 and the case-law cited).

42The second criterion, which in fact constitutes evidence of the first, is that account should be taken of the respective value of each of the benefits making up the economic transaction, one being minimal or even marginal in relation to the other (see, to that effect, judgment of 22 October 1998, Madgett andBaldwin, C‑308/96 and C‑94/97, EU:C:1998:496, paragraph 24).

43Thirdly, as the Advocate General pointed out in point 44 of her Opinion, under Directive 2006/112, ‘closely related activities’ in respect of an exempt supply share the exemption of that exempt supply in order to make that exemption fully effective. However, in the light of the considerations set out in paragraphs 30 and 31 of this judgment, this third type of exception to the general rule that each supply must be regarded as a distinct and independent supply is not applicable in the case of a nutrition monitoring service such as that provided in the main proceedings. It is therefore appropriate to dispense with the examination of that type of exception.

44As regards the applicability to services such as those at issue in the main proceedings of the first type of exception, referred to in paragraph 38 of this judgment, it should be noted, on reading the order for reference, that the applicant in the main proceedings is engaged, inter alia, in the activity of managing and operating sports facilities and physical well-being and fitness activities and that it has supplied, through a professional duly qualified and certified for that purpose, nutrition monitoring services on its premises.

45Moreover, it is clear from the information provided by the national court that the various services supplied by the applicant in the main proceedings were invoiced separately and that it was possible to benefit from some of them without recourse to others.

46Thus, subject to verification by the referring court, it appears that physical well-being and fitness services, on the one hand, and nutrition monitoring, on the other, as provided by the applicant in the main proceedings, are not indivisibly linked within the meaning of the case-law referred to in paragraphs 38 and 39 of this judgment.

47Supplies such as those at issue in the main proceedings should therefore be regarded, in principle, as not constituting a single supply of a complex nature.

48As regards the applicability to services such as those at issue in the main proceedings of the second type of exception, referred to in paragraphs 40 to 42 of this judgment, it is important, in the present case, to note, on the one hand, the autonomous purpose of the dietary monitoring service from the perspective of the average consumer. Even if such dietary monitoring services were provided or could be provided in the same sports premises as physical well-being and fitness services, the purpose of the former is not a sporting one, but a health and aesthetic one, notwithstanding the fact that a dietary regime may have the effect of contributing to athletic performance. On the other hand, as the Advocate General pointed out in point 56 of her Opinion, in the case in the main proceedings, according to the applicant's invoice, 40% of the total monthly consideration payable by the client was attributable to nutritional advice, a percentage which clearly cannot be described as minimal or, a fortiori, marginal. Dietary monitoring services such as those at issue in the main proceedings cannot therefore be regarded as ancillary to the main services which constitute physical well-being and fitness services.

49It follows that services such as those at issue in the main proceedings must, subject to verification by the national court, be regarded as distinct and independent of one another for the purposes of the application of Article 2(1)(c) of Directive 2006/112.

50In the light of those findings, the answer to the questions raised is that Directive 2006/112 must be interpreted as meaning that, subject to verification by the referring court, a nutrition monitoring service provided, under circumstances such as those at issue in the main proceedings, by a certified and authorised professional in sports facilities, potentially in the context of programmes that also include physical well-being and fitness services, constitutes a separate and independent supply of services and is not capable of falling under the exemption laid down in Article 132(1)(c) of that directive.

Costs

51Since 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 (Third Chamber) hereby rules:

Council Directive 2006/112 of 28 November 2006 on the common system of value added tax must be interpreted as meaning that, subject to verification by the referring court, a nutrition monitoring service provided by a certified and authorised professional in sports facilities, potentially in the context of programmes that also include physical well-being and fitness services, constitutes a separate and independent supply of services and is not capable of falling under the exemption laid down in Article 132(1)(c) of that directive.

Signatures

[Signatures]

( *1 ) Language of the case: Portuguese.

ORDONNANCE DE LA COUR (troisième chambre)

23 mars 2021 ( *1 )

« Rectification d’arrêt »

Dans l’affaire C‑581/19 REC,

ayant pour objet une demande de décision préjudicielle au titre de l’article 267 TFUE, introduite par le Tribunal Arbitral Tributário (Centro de Arbitragem Administrativa – CAAD) [tribunal arbitral en matière fiscale (centre d’arbitrage administratif – CAAD), Portugal], par décision du 22 juillet 2019, parvenue à la Cour le 30 juillet 2019, dans la procédure

Frenetikexito – Unipessoal Lda

contre

Autoridade Tributária e Aduaneira,

LA COUR (troisième chambre),

composée de Mme A. Prechal, présidente de chambre, MM. N. Wahl (rapporteur), F. Biltgen, Mme L. S. Rossi et M. J. Passer, juges,

avocate générale : Mme J. Kokott,

greffier : M. A. Calot Escobar,

l’avocate générale entendue,

rend la présente

Ordonnance

Grounds

1Le 4 mars 2021, la Cour (troisième chambre) a rendu l’arrêt Frenetikexito (C‑581/19, EU:C:2021:167).

2Cet arrêt contient, dans sa version en langue de procédure, des erreurs qu’il convient de rectifier d’office, en vertu de l’article 103, paragraphe 1, du règlement de procédure de la Cour.

Operative part

Par ces motifs, la Cour (troisième chambre) ordonne :

Le point 33 de l’arrêt du 4 mars 2021, Frenetikexito (C‑581/19, EU:C:2021:167), doit être rectifié comme suit :

« Qualquer outra interpretação teria como consequência alargar o âmbito de aplicação da isenção prevista no artigo 132.°, n.° 1, alínea c), da Diretiva 2006/112 para além da ratio legis que traduzem a redação desta disposição, bem como a epígrafe do capítulo 2 do título IX desta diretiva. Com efeito, qualquer serviço efetuado no âmbito do exercício de uma profissão médica ou paramédica, que tenha por efeito, mesmo de forma muito indireta ou longínqua, prevenir certas patologias, estaria abrangido pela isenção prevista nessa disposição, o que não corresponderia à intenção do legislador da União e à exigência de interpretação estrita dessa isenção, recordada no n.o 22 do presente acórdão. Como salientou a advogada‑geral no n.° 61 das suas conclusões, uma ligação incerta com uma patologia, sem risco concreto de prejuízo para a saúde, não é suficiente a este respeito. »

La minute de la présente ordonnance est annexée à la minute de l’arrêt rectifié. Mention de cette ordonnance est faite en marge de la minute de l’arrêt rectifié.

Signatures

Signatures

( *1 ) Langue de procédure : le portugais.

OPINION OF ADVOCATE GENERAL

KOKOTT

delivered on 22 October 2020 ¹

(Reference for a preliminary ruling – Directive 2006/112/EC – Common system of value added tax – Multiple supplies – Classification as a single transaction – Complex supply – Ancillary supply to the principal supply – Two independent supplies – VAT exemption – Provision of medical care)

I. Introduction

1Under Article 2(1) of the VAT Directive, VAT is charged on each individual transaction. Sometimes, however, individual transactions are linked (‘bundles of supplies’) such that it is unclear whether they should still be regarded as individual, independent transactions. The present case concerns the question, which is of practical significance, of when, in the case of multiple supplies, a single complex supply, a dependent ancillary supply or multiple supplies to be considered independently are to be taken to exist.

2In the present case, the operator of a fitness studio offered, in addition to the fitness service, a nutrition advice service. It classified the fitness services as liable for VAT and the nutrition advice services, on the other hand, as exempt. In the view of the operator, the nutrition advice service is an independent, exempt supply consisting in provision of medical care. However, that assumption is ineffective a priori if the combination of the fitness service and nutrition advice constitute a single supply of services or the nutrition advice service is a dependent ancillary supply to the fitness service. An exemption of the transaction would then be ruled out in principle. In the case of an independent supply, however, it would have to be examined whether in fact a nutrition advice service constitutes provision of medical care within the meaning of Article 132(1)(c) of the VAT Directive.

3Even though the Court has dealt with similar issues a number of times, ² in the view of the referring court clear criteria for assessing such bundles of supplies cannot be inferred from the Court’s existing case-law. These proceedings therefore also give the Court an opportunity to clarify the criteria governing the VAT treatment of bundles of supplies. This could make it easier for specialised national courts to decide, with legal certainty and autonomy, whether there is a single complex supply, a dependent ancillary supply or two (principal) supplies that are to be treated distinctly.

II. Legal framework

A. EU law

4The EU law framework in this case is defined by the provisions of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (‘the VAT Directive’). ³

5The second subparagraph of Article 1(2) of the VAT Directive provides:

‘On each transaction, VAT, calculated on the price of the goods or services at the rate applicable to such goods or services, shall be chargeable after deduction of the amount of VAT borne directly by the various cost components.’

6Article 132(1)(c) of the VAT Directive lays down an exemption from VAT for ‘the provision of medical care in the exercise of the medical and paramedical professions as defined by the Member State concerned’.

B. Portuguese law

7Article 9 of the Portuguese Value Added Tax Code ⁴ transposes Article 132 of the VAT Directive. Paragraph 1 thereof ⁵ exempts supplies of services made in the exercise of the professions of doctor, dentist, midwife, nurse and other paramedical professions.

III. Facts

8Frenetikexito – Unipessoal Lda (‘the applicant’) is a company having its registered office in Portugal. The applicant is engaged in several lines of business. It operates fitness studios and runs fitness programmes. It also offers, among other things, nutrition advice. Nutrition advice is provided by a certified professional one day a week at the premises of the fitness studio.

9Customers of the fitness studio have the option to subscribe to nutrition advice in addition to their fitness plans. Once subscribed, the customer pays for nutrition advice, regardless of whether it is actually used. In the general invoice the applicant indicates separately the fees payable for the fitness service and for nutrition advice. According to the Portuguese Republic, 60% of the overall monthly fee is apportionable to the fitness service and 40% to the nutrition advice service. The applicant also offers nutrition advice to external customers as a standalone service without the fitness service.

10The applicant applies the VAT exemption for medical supplies under Article 9(1) of the Value Added Tax Code to the nutrition advice services, both for customers of the fitness studio and for external customers. It maintains that the fitness and nutrition advice services are autonomous and should therefore be assessed differently for VAT purposes. The Autoridade Tributária e Aduaneira (Tax and Customs Authority, Portugal, ‘the tax authority’), on the other hand, classifies the nutrition advice service merely as a dependent ancillary supply to the fitness service. The latter service is not exempt from VAT. In the view of the tax authority, this should logically also apply to the nutrition advice service, as the VAT assessment of a dependent ancillary supply is contingent only on the principal supply.

11After the conclusion of inspection proceedings, the tax authority therefore amended the VAT assessments for the years at issue, 2014 and 2015. The applicant is challenging the amended assessments before the referring court.

IV. Preliminary ruling procedure

12By decision of 22 July 2019, the Tribunal Arbitral Tributário (Centro de Arbitragem Administrativa (CAAD), Tax Arbitration Tribunal (Centre for Administrative Arbitration), Portugal) referred the following two questions to the Court:

Where, as occurs in this case, a company

carries on, principally, fitness and physical well-being activities and, on a secondary basis, human health activities, which include nutrition services, nutrition/dietary advice, fitness assessment services and massages; and

offers its customers plans that include only fitness service and plans that include nutrition services in addition to fitness service,

for the purposes of Article 2(1)(c) of Directive 2006/112/EC of 28 November 2006, must the human health activity, and the nutrition service in particular, be regarded as ancillary to the fitness and physical well-being activity, with the effect that the ancillary supply must be given the same tax treatment as the principal supply, or, on the contrary, must the human health activity, and the nutrition service in particular, be regarded as independent of and distinct from the fitness and physical well-being activity, with the effect that the tax treatment established for each of those activities will apply to that activity?

2For the purposes of applying the exemption under Article 132(1)(c) of Directive 2006/112/EC of 28 November 2006, must the services listed in that article actually be supplied, or is it sufficient in order for that exemption to apply that they are merely made available, so that use of those services depends solely on the wishes of the customer?’

13In the proceedings before the Court, the applicant, the Portuguese Republic and the European Commission submitted written observations.

V. Legal assessment

A. The first question

14By the first question, the referring court wishes to know, in essence, whether the combination of the fitness service and nutrition advice is to be regarded as multiple supplies, each requiring a separate VAT assessment.

15In principle, every supply of goods or services must be regarded as independent (see under 1.). Taking an overview of the Court’s existing case-law, it is apparent that there are only a few exceptional cases where a derogation from that principle is permitted. I will highlight those situations (see under 2.) and then examine whether this is such an exceptional case (see under 3.).

1. Principle: every supply is independent

16The Court has held in settled case-law that for VAT purposes every supply must normally be regarded as distinct and independent. ⁶ This follows from the second subparagraph of Article 1(2) ⁷ and Article 2 ⁸ of the VAT Directive.

17Furthermore, the VAT Directive establishes a differentiated system of rules governing the place of performance, exemptions and the tax rate. If the supplies, which are to be assessed differently in themselves, were subject globally to a uniform analysis for VAT purposes merely because there are certain geographical, temporal or substantive links between them, that would circumvent this differentiated system.

18It follows that, in principle, each individual supply must be assessed separately for VAT purposes. This holds even where there are certain links between multiple supplies because they pursue a single economic aim. ⁹

19The contractual structure in question is likewise irrelevant. ¹⁰ The VAT assessment of a transaction cannot depend on the contractual arrangements available under national civil law. If, as is the case here to some extent, multiple supplies are made on the basis of a single contract under civil law, this does not call into question the independence of those supplies for VAT purposes. ¹¹

2. Exceptions to the principle that every supply is independent

20However, the principle that every supply is independent is not absolute. Transactions should not be artificially split, so as not to distort the functioning of the VAT system. ¹² The VAT treatment of bundles of supplies is thus caught in tension between the principle that supplies are independent, on the one hand, and the prohibition on the artificial splitting of single transactions, on the other.

21In this connection, the Court has developed two exceptions to the principle that a supply is independent: single complex supplies (see under a.) and dependent ancillary supplies (see under b.). In addition, the VAT Directive also contains the exception for closely related activities (see under c.).

(a) First exception: single complex supply

22Where there is a single complex supply, multiple elements of the supply form one sui generis supply. That is the situation, according to the Court’s case-law, where the supply by the taxable person consists of two or more elements or acts which are so closely linked that they form, objectively, a single, indivisible economic supply, which it would be artificial to consider separately. ¹³ The Court determines whether this is the case by ascertaining the essential features ¹⁴ or characteristic elements of the transaction ¹⁵ from the perspective of the ‘typical consumer’. ¹⁶

23It is therefore crucial whether the typical consumer (the typical recipient of the supply) regards the supply received as multiple distinct supplies or as a single supply. The decisive criterion is the generally accepted view, that is to say, the understanding of the general public. By having regard to the ‘typical consumer’, the Court applies a generalisation which it also uses in other fields of law. ¹⁷

24In its case-law the Court has developed various indications for the purposes of the VAT assessment of bundles of supplies. These are the indivisibility of the elements of the supply (point 25 et seq.), the separate availability of the supplies (point 29), the economic aim of the supply (points 30 and 31) and separate invoicing (points 32 and 33).

(1) Indivisibility of the elements of the supply

25A characteristic of a single complex supply is the indivisibility of the elements of the supply. ¹⁸ In the case of a single complex supply, the individual elements of the supply merge into a new distinct supply, such that, in the generally accepted view, there is only a single supply.

26This is clear from the example of restaurant transactions consisting of various elements of supplies, such as the provision of foodstuffs and services like the preparation of food or the making available of furniture and crockery. ¹⁹ It would be artificial to split this into a supply of goods and a provision of services. What is important to the typical visitor to a restaurant is the combination of the individual elements in the experience of ‘visiting a restaurant’, which is a service. ²⁰ It is a different situation if the customer merely picks up food at a snack stall. The typical snack stall customer sees this as a single supply of foodstuffs, ²¹ even though the preparation and ‘serving’ at the snack stall is a supply of services.

27From the perspective of the typical consumer, where there is a single complex supply the individual elements lose their independence and become secondary to a new sui generis supply. The object to be examined is then only that single supply as a whole. Any weighting of the individual elements of the supply is rightly irrelevant. It is also to be determined solely according to the generally accepted view whether the single complex supply constitutes a supply of goods under Article 14(1) or a supply of services under Article 24(1) of the VAT Directive.

28It is therefore slightly misleading when the Court sometimes states that the material factor in the assessment of a single supply is whether the elements of the supply of goods or of the supply of services ‘predominate’. ²² This wording suggests that the individual elements must be broken down and then weighed. In fact, this merely distinguishes between whether, in the generally accepted view, the complex (sui generis) supply is to be regarded as a supply of goods or a supply of services.

(2) Separate availability of the supplies

29An indication militating against the existence of a single complex supply is the separate availability of the supplies. According to the Court’s case-law, the fact that supplies are available independently of one another suggests the existence of multiple independent supplies for VAT purposes. ²³ In contrast, a single complex supply is suggested where the recipient of the supply cannot receive one element of the supply without another. ²⁴ Thus, there is a single complex supply where visitors to an aquatic park are given access to all the facilities in the park through their entrance ticket, regardless of which facilities they actually use. ²⁵

(3) Indispensability of the elements of the supply for the aim of the supply

30Another indication of the existence of a single complex supply is the single economic aim of the transaction. ²⁶ If the combination of multiple supplies is important to the typical recipient of supplies, this suggests a single complex supply. According to the Court’s case-law, a single complex supply exists if all the elements of the supply are indispensable for achieving the aim of the supply. ²⁷

31In portfolio management, for instance, the bank typically supplies two kinds of service: the purchase/sale of securities and their management. If, in that case, the elements of the supply are necessarily mutually dependent because the asset holder has entrusted the management of the securities to the bank so that it can decide on the most opportune time for the purchase and sale of the securities, there is a single supply of services. ²⁸ That supply relates to the growth of the assets placed under management and, unlike the mere sale of securities, is not exempt. ²⁹

(4) Separate invoicing as an indication that supplies are divisible

32If an overall price is agreed for the bundle of supplies, this should also be seen as an indication of a single complex supply, according to the Court’s case-law. ³⁰ Conversely, however, agreement of separate prices for individual elements of a supply is likewise only an indication of multiple independent supplies ³¹ as separate pricing in a specific case may be merely based on the internal calculation by the supplier.

33If, however, the charge attributed to the individual elements of the supply cannot be easily factored out, this suggests a single complex supply. In this case, splitting the elements would appear artificial. That is the case, for example, with off-airport park and ride services, where customers park their vehicles at a car park outside the airport and the car park operator is responsible for transportation to the airport. ³² If the charge depends solely on the parking time, without transportation being invoiced separately, that pricing suggests a single complex supply. ³³

(b) Second exception: dependent ancillary supply

34A further derogation to the principle that every supply is independent is required if a supply constitutes a merely dependent ancillary supply to a principal supply. ³⁴ A supply must be regarded as ancillary to a principal supply if it does not constitute for customers an end in itself but a means of better enjoying the principal service supplied. ³⁵ The ancillary supply has only secondary importance compared with the principal supply, which is why it ‘shares the tax treatment of the principal supply’. ³⁶ This means that the ancillary supply is to be treated for VAT purposes in exactly the same way as the principal supply.

35Unlike in the case of a single complex supply, dividing a bundle of supplies into a principal and an ancillary supply does not give rise to any artificial splitting. The principal supply and the ancillary supply are clearly divisible from one another. Dependent ancillary supplies, however, are merely accessory in relation to the principal supplies related to them. ³⁷ The ancillary supply does not have a distinct function, but only an ‘auxiliary’ function.

36Typical examples of ancillary supplies in the supply of goods are packaging or shipment. The latter supplies of services do not have the importance of a distinct principal supply because they serve only to fulfil the actual purpose of the contract. The same holds, for example, where the provider makes available, for consideration, different payment methods. ³⁸

37In the case of such negligible ancillary supplies, dispensing with a separate VAT assessment cannot jeopardise the differentiated system of the VAT Directive. For the sake of practicability, a single transaction should therefore be taken to exist. In addition, the principle of fiscal neutrality, which precludes treating similar supplies of services, which are thus in competition with each other, differently for VAT purposes, does not require transactions to be split in this situation. ³⁹ There is no competitive situation where the supplier can make the accessory ancillary supply only depending on the principal supply.

38For this situation, indications can also be found in the Court’s case-law, such as the value ratio between the individual supplies (see under points 39 and 40) or the absence of a distinct economic interest for the recipient of the supply (see under point 41 et seq.).

(1) Negligible value in relation to the other (principal) supply

39There can be no objection to the equal treatment of the ancillary supply and the principal supply where the extent of the ancillary supply is actually negligible. ⁴⁰ For this reason, the Court establishes the limit for an independent supply where the supply cannot be made without a substantial effect on the total price charged and the costs are not confined to a marginal share. ⁴¹

40If, for example, a hotelier offers his guests a transportation service from local airports and the cost of that service represents only a negligible proportion in comparison with accommodation, the supply is, as a rule, purely ancillary. Ultimately, transportation is a traditional task of the hotelier, which is a means of better enjoying the principal supply. ⁴² The situation may be assessed differently, however, in the case of a distant pick-up point or a transfer to an excursion destination, where the transport service has a substantial effect on the total price charged. ⁴³

(2) No distinct economic interest for the recipient of the supply

41Furthermore, it is a typical characteristic of dependent ancillary supplies that the recipient of the supply does not have a distinct economic interest in them. ⁴⁴ From an economic point of view, they merely serve to complement and supplement the principal supply and are therefore normally a consequence of that supply. ⁴⁵ Their economic aim can be achieved, from the perspective of the typical consumer, only in combination with the principal supply.

42In gaining an understanding of the interrelationship between multiple supplies, the relevant contractual arrangements may be a factor of importance. ⁴⁶ For example, the supply of water, heating and electricity should probably be classified as dependent ancillary supplies to the principal supply of ‘letting’, as the recipient of the supplies has an interest in these common supplies only in connection with the transfer of the premises. It is irrelevant whether these ancillary supplies are billed on the basis of consumption, as is normally the case with water and heating. ⁴⁷ Non-typical ancillary letting supplies, on the other hand, should probably be characterised as a dependent ancillary supply only in exceptional cases. ⁴⁸

43A dependent ancillary supply is not precluded by the fact that it could also, theoretically, be made by a third party, for example where a tenant receives electricity directly from the electricity supplier. ⁴⁹ Rather, the fact that a third party can theoretically make the supply is inherent in the concept of the transaction consisting of an ancillary supply and a principal supply. ⁵⁰

(c) Third exception: closely related activities

44The final exception to the principle that every individual supply is independent follows from the VAT Directive itself. ‘Closely related activities’ share the exemption of an exempt supply in order to make the exemptions fully effective.

45An example is the exemption of hospital and medical care under Article 132(1)(b) of the VAT Directive. In order to achieve the therapeutic aim, further supplies which are distinct from pure medical and hospital care may be necessary in an individual case, such as the services provided by an external laboratory. ⁵¹ Making such supplies subject to VAT would run counter to the aim of reducing costs for the health system. ⁵² The legislature therefore declares in Article 132(1)(b) of the VAT Directive that ‘closely related activities’ are also exempt alongside the care itself.

46The Court sometimes employs the notions of ‘principal and ancillary supply’ in the context of closely related activities. ⁵³ This is not entirely accurate from a doctrinal point of view. If closely related activities were already a dependent ancillary supply, there would be no need for the explicit exemption for those transactions. They would already be exempt by virtue of their character as a dependent ancillary supply.

47In using this terminology, the Court is, in my view, merely seeking to make clear that, like ancillary supplies in the abovementioned sense, closely related activities are ‘auxiliary’, even though they are independent supplies. Unlike dependent ancillary supplies, they can thus also be provided by a taxable person other than the person who makes the exempt supply itself. ⁵⁴ Nor is the identity of the recipient of the supply a condition for a closely related activity. ⁵⁵

3. Assessment of the nutrition advice service provided in this case

48If, as in this case, the applicant offers nutrition advice alongside fitness services, both services pursue a common economic aim. Both are likely to boost physical well-being and athletic performance. Using one increases the efficiency of the other.

49Contrary to the assertion made by Portugal, however, it does not necessarily follow that the fitness and nutrition services, which are supplied, at least predominantly, on the basis of a single contractual relationship, are to be regarded as a single transaction. The mere economic links between two supplies are not sufficient to outweigh the fundamental independence of each individual supply (see above, point 18).

50Nor does any other conclusion follow from the fact that nutrition advice is provided at a fitness studio. Where there is a combination of a fitness service and nutrition advice, both a single complex supply (point 51 et seq.) and a dependent ancillary supply (point 55 et seq.) are ruled out.

(a) Not a case of a single complex supply

51A single complex service exists where the supply by the taxable person consists of two or more elements which are so closely linked that they form, objectively, a single, indivisible economic supply, which it would be artificial to consider separately. ⁵⁶ Indications are provided by the indivisibility of the elements of the supply (point 25 et seq.), the separate availability of the supplies (point 29), the indispensability of the elements of the supply for the aim of the supply (points 30 and 31) and separate invoicing (points 32 and 33). There are no such indications here.

52Even if customers opt for the full package of the fitness service and nutrition advice, the individual elements of the supply (fitness and nutrition) are not indivisibly linked to each other. Ultimately, the services are supplied at separate times and locations by different staff. A separate VAT assessment does not therefore seem artificial, as the typical customer of the fitness studio would probably take two supplies to exist.

53The fitness and nutrition advice supplies are also available to the recipient of the supplies independently of one another. Each customer is free to decide whether to subscribe to both offers in combination or each individually. It is also not essential to utilise the nutrition advice service in order to use the fitness service meaningfully. This is shown by the fact that the applicant offers fitness plans with or without nutrition advice.

54Lastly, the separate invoicing in this case indicates the existence of two independent supplies. Although an overall monthly fee is payable in the case of a joint subscription to the fitness service and the nutrition advice service, they are priced separately, as is shown by the applicant in the invoice.

(b) Not a case of a dependent ancillary supply

55Furthermore, the criteria for a dependent ancillary supply are not satisfied in this instance. A supply must be regarded as ancillary to a principal supply if it does not constitute for customers an end in itself but a means of better enjoying the principal service supplied. ⁵⁷ Indications of such an auxiliary function are the value ratio between the individual supplies (points 39 and 40) or the absence of a distinct economic interest for the recipient of the supply (point 41 et seq.). There are likewise no such indications here.

56The fact that nutrition advice is not a negligible, dependent ancillary supply is shown by the value ratio between the fitness and nutrition supplies. As Portugal asserts, 40% of the overall monthly fee is apportionable to the nutrition advice service. The amount payable for nutrition advice is not therefore merely a marginal share of the overall fee.

57The recipient of the supply also has a distinct economic interest in nutrition advice. As has already been pointed out, the economic aim of a dependent ancillary supply can be achieved only in combination with its related principal supply. That is not quite the case here. The fitness service is not crucial to the aim of healthy nutrition pursued by the nutrition advice service. Healthy nutrition and sufficient physical activity are both elements of a healthy lifestyle but, in the generally accepted view, cover different areas of life. The nutrition advice service does not therefore merely complement the fitness service.

4. Conclusion

58Accordingly, the nutrition advice services supplied by the applicant in the present case are independent services for the purposes of the VAT Directive, which are separate from the VAT assessment of the fitness service.

B. The second question

59By its second question, the referring court wishes to know, in essence, whether the exemption under Article 132(1)(c) of the VAT Directive also applies where, although the nutrition advice service is paid for, it is not used. The referring court obviously assumes that the nutrition advice services supplied by the applicant come under the exemption in Article 132(1)(c) of the VAT Directive.

60However, as the Commission maintains, this is rather doubtful. For that exemption to apply, medical care would have to be provided. ⁵⁸ The concept of medical care covers only services that have as their aim the diagnosis, treatment and, in so far as possible, cure of diseases or health disorders. ⁵⁹ The necessary condition is thus a therapeutic aim. ⁶⁰

61That condition is not met in the case of general nutrition advice. It is true that the Court has adopted a broad understanding of therapeutic aim and includes preventive measures which protect and maintain health. ⁶¹ However, they must seek to avert, avoid or prevent the occurrence of a health disorder or to detect such a disorder in a latent or incipient state. ⁶² A merely uncertain link without a specific risk of health impairment ⁶³ or a purely cosmetic purpose is not sufficient. ⁶⁴ It is for the referring court to examine whether the advice service is aimed at the prevention or treatment of certain diseases or is merely intended to improve general well-being or appearance. ⁶⁵

62The question whether the supply must actually be used for the exemption under Article 132(1)(c) of the VAT Directive to apply would therefore appear to be relevant only in exceptional cases. In this regard, the Court has ruled in a different context that the VAT assessment of a service does not depend on whether the supplier merely makes that service available or actually supplies it. ⁶⁶

63It is certainly not obvious that this case-law should also be applied to the specific exemption under Article 132(1)(c) of the VAT Directive, as it requires the supply to have a therapeutic aim, which is rather doubtful in the case of a nutrition advice service which has been paid for, but not used. However, there is no need to answer this question. It would arise only if the referring court correctly found that, and explained why, the nutrition advice service at issue actually constitutes a supply consisting in provision of medical care. That is not the case.

VI. Conclusion

64I therefore propose that the Court should rule as follows:

1Where a taxable person supplies nutrition, fitness and physical well-being services, as in the present case, they are independent and distinct supplies for the purposes of Directive 2006/112/EC.

2A nutrition advice service as in the present case is an exempt supply consisting in provision of medical care for the purposes of Article 132(1)(c) of Directive 2006/112/EC at best if it pursues a therapeutic aim. It is for the referring court to determine whether that is the case.

¹ Original language: German.

² See, for example, judgments of 2 July 2020, Blackrock Investment Management (UK) (C‑231/19, EU:C:2020:513); of 4 September 2019, KPC Herning (C‑71/18, EU:C:2019:660); of 27 March 2019, Mydibel (C‑201/18, EU:C:2019:254); of 19 December 2018, Mailat (C‑17/18, EU:C:2018:1038); of 18 January 2018, Stadion Amsterdam (C‑463/16, EU:C:2018:22); of 16 April 2015, Wojskowa Agencja Mieszkaniowa w Warszawie (C‑42/14, EU:C:2015:229); of 27 September 2012, Field Fisher Waterhouse (C‑392/11, EU:C:2012:597); of 10 March 2011, Bog and Others (C‑497/09, C‑499/09, C‑501/09 and C‑502/09, EU:C:2011:135); of 11 June 2009, RLRE Tellmer Property (C‑572/07, EU:C:2009:365); of 29 March 2007, Aktiebolaget NN (C‑111/05, EU:C:2007:195); of 27 October 2005, Levob Verzekeringen and OV Bank (C‑41/04, EU:C:2005:649); of 25 February 1999, CPP (C‑349/96, EU:C:1999:93); and of 2 May 1996, Faaborg-Gelting Linien (C‑231/94, EU:C:1996:184).

³ OJ 2006 L 347, p. 1.

⁴ Código do Imposto sobre o Valor Acrescentado (CIVA).

⁵ In the version applicable to the dispute.

⁶ Judgments of 2 July 2020, Blackrock Investment Management (UK) (C‑231/19, EU:C:2020:513, paragraph 23); of 18 January 2018, Stadion Amsterdam (C‑463/16, EU:C:2018:22, paragraph 22); of 10 November 2016, Baštová (C‑432/15, EU:C:2016:855, paragraph 68); and of 10 March 2011, Bog and Others (C‑497/09, C‑499/09, C‑501/09 and C‑502/09, EU:C:2011:135, paragraph 53).

⁷ For example, judgments of 2 July 2020, Blackrock Investment Management (UK) (C‑231/19, EU:C:2020:513, paragraph 23); of 8 December 2016, Stock’94 (C‑208/15, EU:C:2016:936, paragraph 26); and of 16 April 2015, Wojskowa Agencja Mieszkaniowa w Warszawie (C‑42/14, EU:C:2015:229, paragraph 30).

⁸ For example, judgments of 18 January 2018, Stadion Amsterdam (C‑463/16, EU:C:2018:22, paragraph 22); of 10 March 2011, Bog and Others (C‑497/09, C‑499/09, C‑501/09 and C‑502/09, EU:C:2011:135, paragraph 53); and of 27 October 2005, Levob Verzekeringen and OV Bank (C‑41/04, EU:C:2005:649, paragraph 20).

⁹ See judgment of 4 September 2019, KPC Herning (C‑71/18, EU:C:2019:660, paragraph 44), and also, to that effect, judgment of 17 January 2013, BGŻ Leasing (C‑224/11, EU:C:2013:15, paragraph 42).

¹⁰ Judgments of 4 September 2019, KPC Herning (C‑71/18, EU:C:2019:660, paragraph 47), and of 6 May 2010, Commission v France (C‑94/09, EU:C:2010:253, paragraph 33).

¹¹ See judgment of 4 September 2019, KPC Herning (C‑71/18, EU:C:2019:660, paragraph 47).

¹² Judgments of 2 July 2020, Blackrock Investment Management (UK) (C‑231/19, EU:C:2020:513, paragraph 23); of 18 January 2018, Stadion Amsterdam (C‑463/16, EU:C:2018:22, paragraph 22); of 16 April 2015, Wojskowa Agencja Mieszkaniowa w Warszawie (C‑42/14, EU:C:2015:229, paragraph 44); of 10 March 2011, Bog and Others (C‑497/09, C‑499/09, C‑501/09 and C‑502/09, EU:C:2011:135, paragraph 53); and of 25 February 1999, CPP (C‑349/96, EU:C:1999:93, paragraph 29).

¹³ Judgments of 2 July 2020, Blackrock Investment Management (UK) (C‑231/19, EU:C:2020:513, paragraph 23); of 19 December 2018, Mailat (C‑17/18, EU:C:2018:1038, paragraph 33); of 18 January 2018, Stadion Amsterdam (C‑463/16, EU:C:2018:22, paragraph 22); of 10 November 2016, Baštová (C‑432/15, EU:C:2016:855, paragraph 70); and of 29 March 2007, Aktiebolaget NN (C‑111/05, EU:C:2007:195, paragraph 23).

¹⁴ Judgments of 29 March 2007, Aktiebolaget NN (C‑111/05, EU:C:2007:195, paragraph 22), and of 27 October 2005, Levob Verzekeringen and OV Bank (C‑41/04, EU:C:2005:649, paragraph 20).

¹⁵ Judgments of 18 January 2018, Stadion Amsterdam (C‑463/16, EU:C:2018:22, paragraph 30); of 27 September 2012, Field Fisher Waterhouse (C‑392/11, EU:C:2012:597, paragraph 18); and of 25 February 1999, CPP (C‑349/96, EU:C:1999:93, paragraph 29). By contrast, the judgments always use the same term in the original (that is to say, in the French language version): ‘éléments caractéristiques’.

¹⁶ Judgments of 19 July 2012, Deutsche Bank (C‑44/11, EU:C:2012:484, paragraph 21); of 2 December 2010, Everything Everywhere (C‑276/09, EU:C:2010:730, paragraph 26); and of 25 February 1999, CPP (C‑349/96, EU:C:1999:93, paragraph 29).

¹⁷ See judgments of 23 April 2020, Gömböc (C‑237/19, EU:C:2020:296, paragraph 44), with regard to trade mark law; of 30 January 2020, Dr. Willmar Schwabe (C‑524/18, EU:C:2020:60, paragraph 40), with regard to foodstuffs law; and of 20 September 2018, OTP Bank and OTP Faktoring (C‑51/17, EU:C:2018:750, paragraph 78), with regard to consumer protection.

¹⁸ Judgments of 2 July 2020, Blackrock Investment Management (UK) (C‑231/19, EU:C:2020:513, paragraph 23); of 4 September 2019, KPC Herning (C‑71/18, EU:C:2019:660, paragraph 38); of 28 February 2019, Sequeira Mesquita (C‑278/18, EU:C:2019:160, paragraph 30): ‘single, indivisible economic supply’; and of 19 December 2018, Mailat (C‑17/18, EU:C:2018:1038, paragraph 39).

¹⁹ Judgments of 10 March 2011, Bog and Others (C‑497/09, C‑499/09, C‑501/09 and C‑502/09, EU:C:2011:135, paragraph 64), and of 2 May 1996, Faaborg-Gelting Linien (C‑231/94, EU:C:1996:184, paragraphs 13 and 14).

²⁰ Judgments of 10 March 2011, Bog and Others (C‑497/09, C‑499/09, C‑501/09 and C‑502/09, EU:C:2011:135, paragraph 64), and of 2 May 1996, Faaborg-Gelting Linien (C‑231/94, EU:C:1996:184, paragraph 15).

²¹ Judgment of 10 March 2011, Bog and Others (C‑497/09, C‑499/09, C‑501/09 and C‑502/09, EU:C:2011:135, paragraph 67 et seq.).

²² Judgments of 10 March 2011, Bog and Others (C‑497/09, C‑499/09, C‑501/09 and C‑502/09, EU:C:2011:135, paragraphs 74, 76 and 81), and of 2 May 1996, Faaborg-Gelting Linien (C‑231/94, EU:C:1996:184, paragraph 14).

²³ Judgments of 16 July 2015, Mapfre asistencia and Mapfre warranty (C‑584/13, EU:C:2015:488, paragraph 56), and of 17 January 2013, BGŻ Leasing (C‑224/11, EU:C:2013:15, paragraph 43).

²⁴ Judgments of 8 December 2016, Stock’94 (C‑208/15, EU:C:2016:936, paragraph 33), and of 21 February 2013, Žamberk (C‑18/12, EU:C:2013:95, paragraph 32).

²⁵ Judgment of 21 February 2013, Žamberk (C‑18/12, EU:C:2013:95, paragraph 32).

²⁶ See judgment of 4 September 2019, KPC Herning (C‑71/18, EU:C:2019:660, paragraph 40).

²⁷ Judgments of 2 July 2020, Blackrock Investment Management (UK) (C‑231/19, EU:C:2020:513, paragraph 34), and of 19 July 2012, Deutsche Bank (C‑44/11, EU:C:2012:484, paragraph 27).

²⁸ See judgment of 19 July 2012, Deutsche Bank (C‑44/11, EU:C:2012:484, paragraph 29).

²⁹ See judgment of 19 July 2012, Deutsche Bank (C‑44/11, EU:C:2012:484, paragraph 46).

³⁰ Order of 19 January 2012, Purple Parking and Airparks Services (C‑117/11, not published, EU:C:2012:29, paragraph 35), and judgment of 25 February 1999, CPP (C‑349/96, EU:C:1999:93, paragraph 31).

³¹ Judgments of 18 January 2018, Stadion Amsterdam (C‑463/16, EU:C:2018:22, paragraph 27); of 17 January 2013, BGŻ Leasing (C‑224/11, EU:C:2013:15, paragraph 44); and of 2 December 2010, Everything Everywhere (C‑276/09, EU:C:2010:730, paragraph 29).

³² Order of 19 January 2012, Purple Parking and Airparks Services (C‑117/11, not published, EU:C:2012:29).

³³ Order of 19 January 2012, Purple Parking and Airparks Services (C‑117/11, not published, EU:C:2012:29, paragraphs 35 and 41).

³⁴ Judgments of 2 July 2020, Blackrock Investment Management (UK) (C‑231/19, EU:C:2020:513, paragraph 34); of 18 January 2018, Stadion Amsterdam (C‑463/16, EU:C:2018:22, paragraph 23); of 10 November 2016, Baštová (C‑432/15, EU:C:2016:855, paragraph 71); of 10 March 2011, Bog and Others (C‑497/09, C‑499/09, C‑501/09 and C‑502/09, EU:C:2011:135, paragraph 54); of 21 February 2008, Part Service (C‑425/06, EU:C:2008:108, paragraph 52); of 27 October 2005, Levob Verzekeringen and OV Bank (C‑41/04, EU:C:2005:649, paragraph 21); of 15 May 2001, Primback (C‑34/99, EU:C:2001:271, paragraph 45); and of 25 February 1999, CPP (C‑349/96, EU:C:1999:93, paragraph 30).

³⁵ Judgments of 18 January 2018, Stadion Amsterdam (C‑463/16, EU:C:2018:22, paragraph 23); of 10 November 2016, Baštová (C‑432/15, EU:C:2016:855, paragraph 71); of 21 February 2008, Part Service (C‑425/06, EU:C:2008:108, paragraph 52); of 15 May 2001, Primback (C‑34/99, EU:C:2001:271, paragraph 45); and of 25 February 1999, CPP (C‑349/96, EU:C:1999:93, paragraph 30).

³⁶ Judgments of 2 July 2020, Blackrock Investment Management (UK) (C‑231/19, EU:C:2020:513, paragraph 29); of 19 July 2012, Deutsche Bank (C‑44/11, EU:C:2012:484, paragraph 19); of 27 October 2005, Levob Verzekeringen and OV Bank (C‑41/04, EU:C:2005:649, paragraph 21); of 15 May 2001, Primback (C‑34/99, EU:C:2001:271, paragraph 45); and of 25 February 1999, CPP (C‑349/96, EU:C:1999:93, paragraph 32).

³⁷ Judgments of 27 September 2012, Field Fisher Waterhouse (C‑392/11, EU:C:2012:597, paragraph 22), and of 2 December 2010, Everything Everywhere (C‑276/09, EU:C:2010:730, paragraph 30).

³⁸ Judgment of 2 December 2010, Everything Everywhere (C‑276/09, EU:C:2010:730, paragraph 27).

³⁹ Judgment of 2 December 2010, Everything Everywhere (C‑276/09, EU:C:2010:730, paragraph 31).

⁴⁰ Judgment of 27 October 2005, Levob Verzekeringen and OV Bank (C‑41/04, EU:C:2005:649, paragraph 29): ‘minor or ancillary’.

⁴¹ See, in connection with travel supplies, judgment of 13 October 2005, ISt (C‑200/04, EU:C:2005:608, paragraph 28).

⁴² See, expressly, judgment of 22 October 1998, Madgett and Baldwin (C‑308/96 and C‑94/97, EU:C:1998:496, paragraph 24).

⁴³ See, for example, Opinion of Advocate General Léger in Madgett and Baldwin (C‑308/96 and C‑94/97, EU:C:1998:182, point 39).

⁴⁴ Judgments of 18 October 2018, Volkswagen Financial Services (UK) (C‑153/17, EU:C:2018:845, paragraph 33), and of 8 December 2016, Stock’94 (C‑208/15, EU:C:2016:936, paragraph 29), with reference to judgment of 16 April 2015, Wojskowa Agencja Mieszkaniowa w Warszawie (C‑42/14, EU:C:2015:229, paragraph 35).

⁴⁵ See, for example, judgment of the Bundesfinanzhof (Federal Finance Court) of 15 January 2009, V R 91/07, DStRE 2009, 615: electricity supply together with long-term camping site rental is exempt.

⁴⁶ Judgment of 27 September 2012, Field Fisher Waterhouse (C‑392/11, EU:C:2012:597, paragraph 23).

⁴⁷ A different view would appear to be taken, on the other hand, in the judgment of 16 April 2015, Wojskowa Agencja Mieszkaniowa w Warszawie (C‑42/14, EU:C:2015:229, paragraph 39), although that decision was probably due to the particular features of that specific case.

⁴⁸ See judgment of 27 September 2012, Field Fisher Waterhouse (C‑392/11, EU:C:2012:597, paragraph 28), with regard to commercial premises.

⁴⁹ Judgments of 27 September 2012, Field Fisher Waterhouse (C‑392/11, EU:C:2012:597, paragraph 26); in the judgment of 11 June 2009, RLRE Tellmer Property (C‑572/07, EU:C:2009:365, paragraph 22), the Court evidently examined only whether there was an ‘indivisible economic transaction’, and thus a single complex supply, which it rightly rejected on the basis of the theoretical provision of supplies by third parties and the divisibility of the supplies. It did not consider whether the cleaning of the common parts of an apartment block might be a dependent ancillary supply in relation to the letting of immovable property.

⁵⁰ Judgment of 27 September 2012, Field Fisher Waterhouse (C‑392/11, EU:C:2012:597, paragraph 26), and order of 19 January 2012, Purple Parking and Airparks Services (C‑117/11, not published, EU:C:2012:29, paragraph 31).

⁵¹ Judgment of 11 January 2001, Commission v France (C‑76/99, EU:C:2001:12, paragraph 27 et seq.).

⁵² Judgments of 5 October 2016, TMD (C‑412/15, EU:C:2016:738, paragraph 30); of 26 February 2015, VDP Dental Laboratory and Others (C‑144/13 and C‑160/13, EU:C:2015:116, paragraphs 43 and 45); and of 11 January 2001, Commission v France (C‑76/99, EU:C:2001:12, paragraph 23).

⁵³ Judgments of 4 May 2017, Brockenhurst College (C‑699/15, EU:C:2017:344, paragraph 25); of 10 June 2010, CopyGene (C‑262/08, EU:C:2010:328, paragraph 39); of 25 March 2010, Commission v Netherlands (C‑79/09, not published, EU:C:2010:171, paragraph 51); and of 1 December 2005, Ygeia (C‑394/04 and C‑395/04, EU:C:2005:734, paragraph 18).

⁵⁴ Judgment of 14 June 2007, Horizon College (C‑434/05, EU:C:2007:343, paragraph 31).

⁵⁵ Judgment of 14 June 2007, Horizon College (C‑434/05, EU:C:2007:343, paragraph 32).

⁵⁶ Judgments of 2 July 2020, Blackrock Investment Management (UK) (C‑231/19, EU:C:2020:513, paragraph 23); of 19 December 2018, Mailat (C‑17/18, EU:C:2018:1038, paragraph 33); of 18 January 2018, Stadion Amsterdam (C‑463/16, EU:C:2018:22, paragraph 22); of 10 November 2016, Baštová (C‑432/15, EU:C:2016:855, paragraph 70); and of 29 March 2007, Aktiebolaget NN (C‑111/05, EU:C:2007:195, paragraph 23).

⁵⁷ Judgments of 18 January 2018, Stadion Amsterdam (C‑463/16, EU:C:2018:22, paragraph 23); of 10 November 2016, Baštová (C‑432/15, EU:C:2016:855, paragraph 71); of 21 February 2008, Part Service (C‑425/06, EU:C:2008:108, paragraph 52); and of 25 February 1999, CPP (C‑349/96, EU:C:1999:93, paragraph 30).

⁵⁸ Judgments of 5 March 2020, X(VAT exemption for telephone consultations) (C‑48/19, EU:C:2020:169, paragraph 17); of 27 June 2019, Belgisch Syndicaat van Chiropraxie and Others (C‑597/17, EU:C:2019:544, paragraph 19); of 27 April 2006, Solleveld and van den Hout-van Eijnsbergen (C‑443/04 and C‑444/04, EU:C:2006:257, paragraph 23); and of 10 September 2002, Kügler (C‑141/00, EU:C:2002:473, paragraph 27).

⁵⁹ Judgments of 5 March 2020, X(VAT exemption for telephone consultations) (C‑48/19, EU:C:2020:169, paragraph 28); of 18 September 2019, Peters (C‑700/17, EU:C:2019:753, paragraph 20); of 2 July 2015, De Fruytier (C‑334/14, EU:C:2015:437, paragraph 20); of 13 March 2014, Klinikum Dortmund (C‑366/12, EU:C:2014:143, paragraph 29); and of 6 November 2003, Dornier (C‑45/01, EU:C:2003:595, paragraph 48).

⁶⁰ Judgments of 5 March 2020, X(VAT exemption for telephone consultations) (C‑48/19, EU:C:2020:169, paragraph 28); of 2 July 2015, De Fruytier (C‑334/14, EU:C:2015:437, paragraph 22); 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 of 20 November 2003, Unterpertinger (C‑212/01, EU:C:2003:625, paragraphs 40 and 42).

⁶¹ Judgments of 2 July 2015, De Fruytier (C‑334/14, EU:C:2015:437, paragraph 21); of 21 March 2013, PFC Clinic (C‑91/12, EU:C:2013:198, paragraph 28); and of 10 June 2010, Future Health Technologies (C‑86/09, EU:C:2010:334, paragraph 43).

⁶² Judgment of 10 June 2010, Future Health Technologies (C‑86/09, EU:C:2010:334, paragraph 44).

⁶³ Judgment of 10 June 2010, Future Health Technologies (C‑86/09, EU:C:2010:334, paragraph 44).

⁶⁴ Judgment of 21 March 2013, PFC Clinic (C‑91/12, EU:C:2013:198, paragraph 29).

⁶⁵ Judgment of 5 March 2020, X(VAT exemption for telephone consultations) (C‑48/19, EU:C:2020:169, paragraph 26).

⁶⁶ Judgments of 27 March 2014, Le Rayon d’Or (C‑151/13, EU:C:2014:185, paragraph 36), and of 21 March 2002, Kennemer Golf (C‑174/00, EU:C:2002:200, paragraph 40).