On June 2, 2016 on the website of the Court of Justice of the European Union the opinion of Advocate Wahl in Case C‑412/15 TMD Gesellschaft für transfusionsmedizinische Dienste mbH versus Finanzamt Kassel II - Hofgeismar was published (ECLI:EU:C:2016:395).
The present proceedings raise, in essence, the following question: is the supply of blood plasma for the purpose of manufacturing medicinal products a transaction exempt from VAT?
To deal with this issue, the Court will, first, have to define ‘blood’ within the meaning of Article 132(1)(d) of the VAT Directive and, second, examine whether a distinction should be made, under that provision, between plasma intended for therapeutic purposes and that intended for the manufacturing of medicinal products.
The dispute in the main proceedings and the questions referred to the Court
· TMD Gesellschaft für transfusionsmedizinische Dienste mbH (‘TMD’) operates a blood donor centre. In the course of its activity, it supplied blood plasma for the purpose of manufacturing medicinal products to X AG, a company established in Switzerland, which collected the plasma from TMD and transported it to its production facilities elsewhere in the European Union.
· In its turnover tax return submitted to the Finanzamt Kassel II ‑ Hofgeismar (‘Finanzamt’) for 2008, TMD deducted the input tax relating to these supplies. The Finanzamt refused the deduction of input tax however on the ground that the supplies of blood plasma to another part of the Union were exempt from tax, both as intra-EU supplies under Paragraph 4(1)(b) of the UStG and as supplies of blood under Paragraph 4(17)(a) of the UStG. The Finanzamt thus concluded that the deduction of input tax was precluded by Paragraph 15(2) of the UStG.
· In its returns for 2009 and 2010, which the Finanzamt accepted, TMD did not deduct any input tax.
· On 7 December 2012, TMD requested amendment of the turnover tax assessments for the years 2008 to 2010, which had been issued subject to the possibility of review. It asked for the input tax relating to the supply of plasma to be recognised. In support of its request, it contended that the intra-EU supplies of blood plasma to which the input tax amounts now claimed related were not exempt under Paragraph 4(17)(a) of the UStG as they involved the supply of source plasma to pharmaceutical companies for fractionation and subsequent manufacture of medicinal products. Consequently, the tax exemption was founded on Paragraph 4(1)(b) of the UStG only and the deduction of input tax therefore had to be allowed.
· The Finanzamt refused the requests for amendment by order of 7 May 2013. TMD thus brought an action before the referring court with the aim of requiring the Finanzamt to amend the tax assessments.
· In support of its action, TMD contended that the supply of blood plasma destined for the manufacturing of medicinal products does not constitute a supply of blood within the meaning of Paragraph 4(17)(a) of the UStG, or Article 132(1)(d) of the VAT Directive. The Finanzamt, for its part, opposes the arguments put forward by TMD and contends that its interpretation of the law corresponds also to the letter of Section 4.17.1 of the UStAE.
· In those circumstances, the referring court decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:
(1) Is Article 132(1)(d) of Directive 2006/112/EC to be interpreted as meaning that the supply of human blood also encompasses the supply of blood plasma obtained from human blood?
(2) If Question 1 is answered in the affirmative: does this also apply to blood plasma that is not intended to be used directly for therapeutic purposes, but exclusively for manufacturing medicinal products?
(3) If Question 2 is answered in the negative: is classification as blood solely dependent on the intended purpose of the blood plasma, or also on the uses to which the blood plasma may theoretically be put?
· Written observations in the present proceedings have been submitted by TMD, the German and Hungarian Governments and the Commission. TMD, the German Government and the Commission also presented oral argument at the hearing on 28 April 2016.
Conclusion
The Advocate General proposes that the Court answer the questions referred for a preliminary ruling by the Hessisches Finanzgericht (Finance Court, Hesse) as follows:
– the term ‘blood’ in Article 132(1)(d) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax encompasses the supply of blood plasma obtained from human blood;
– that term also encompasses blood plasma that is intended to be used for manufacturing medicinal products.
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