VAT Exemption for Non-Conventional Therapies: CAAD Arbitration Case 360/2018-T

ARBITRAL DECISION

REPORT

On 27 July 2018, Association A..., NIPC..., with registered office in ..., hereinafter referred to as the Claimant, requested the constitution of an arbitral tribunal and filed a request for arbitral ruling, pursuant to subparagraph a) of paragraph 1 of article 2 and subparagraph a) of paragraph 1 of article 10 of Decree-Law No. 10/2011, of 20 January (Legal Framework for Arbitration in Tax Matters, hereinafter referred to as RJAT), in which the Tax and Customs Authority (hereinafter referred to as AT) is the Respondent.

The Claimant is represented, in these proceedings, by its agent, Dr. B..., and the Respondent is represented by lawyers Dr. C... and Dr. D...

By means of the request for constitution of the arbitral tribunal and for arbitral ruling, the Claimants seek the annulment of the additional assessment notices for Value Added Tax (VAT) for the years 2012, 2013, 2014 and 2015, in the total amount of €31,353.16 (thirty-one thousand, three hundred and fifty-three euros and sixteen cents), and of the assessments for compensatory interest, in the amount of €5,663.14 (five thousand, six hundred and sixty-three euros and fourteen cents), all in the amount of €37,016.30 (thirty-seven thousand and sixteen euros and thirty cents), requested the annulment of the decision dismissing the Hierarchical Appeal filed, and finally requested recognition of the right to compensation for guarantee unduly provided.

Having verified the formal regularity of the request filed, pursuant to subparagraph a) of paragraph 2 of article 6 of the RJAT, and the Claimant not having proceeded to the appointment of an arbitrator, the signatory was appointed by the President of the Deontological Board of CAAD.

The Arbitrator accepted the appointment made, and the arbitral tribunal was constituted on 3 October 2018, at the headquarters of CAAD, located at Avenida Duque de Loulé, No. 72-A, in Lisbon, as per the communication of the constitution of the arbitral tribunal which is attached to these proceedings.

On 14 December 2018, the Tribunal, with a view to ascertaining the need or otherwise to hear the witnesses listed by the Claimant, granted it, by order, a period of 10 days to indicate the facts not proven by documentary evidence on which its examination would focus. In response, the Claimant, on 8 January 2019, filed a request in which it waived the production of witness evidence.

There being no need for additional evidence production, beyond that which is already documentarily incorporated in the proceedings, with no apparent need for the parties to correct their respective procedural submissions, the proceedings containing all the elements necessary for the delivery of the decision, for reasons of procedural economy and expedition, prohibition of useless acts, and the Claimant having waived the testimony of witnesses, on 14 January 2019, by order, the Tribunal deemed it appropriate to dispense with the holding of the meeting provided for in article 18 of the RJAT, as well as to grant a successive period of 10 days for the Claimant and the Respondent, in that order, to submit their respective written arguments.

The Tribunal, in compliance with the provisions of paragraph 2 of article 18 of the RJAT, appointed 3 April 2019 for the delivery of the arbitral decision, having warned the Claimant that it should proceed to payment of the subsequent arbitral fee, pursuant to paragraph 3 of article 4 of the Regulation of Costs in Tax Arbitration Proceedings, and communicate the same payment to CAAD.

The Claimant submitted its arguments on 24 January 2019 and the Respondent on 7 February 2019.

II. The Claimant's Arguments

The Claimant sustains its requests, in summary, as follows:

The Claimant supports the request for annulment of the additional assessment notices for Value Added Tax (VAT) for the years 2012, 2013, 2014 and 2015, in the total amount of €31,353.16 (thirty-one thousand, three hundred and fifty-three euros and sixteen cents), and of the assessments for compensatory interest, in the amount of €5,663.14 (five thousand, six hundred and sixty-three euros and fourteen cents), all in the total amount of €37,016.30 (thirty-seven thousand and sixteen euros and thirty cents), as being illegal, on the grounds that they are affected by the following defects:

The Claimant clarifies, first and foremost, that "it is an Association whose object aims, among others, the pursuit of social assistance objectives, promoting and protecting health, through the provision of preventive, curative and rehabilitation care, and also through the activities inherent in a nursing home. With reference to its actually pursued object, (...) it has been registered, since 17 January 2007, as a healthcare provider, with the Health Regulatory Entity."

"(...) it is an entity whose establishments are dedicated to the provision of healthcare. Offering for this purpose, a set of healthcare providers qualified to provide healthcare within the scope of conventional therapies and, equally, within the scope of so-called non-conventional therapies (NCT)."

It adds, in this sequence, that "[i]t was indeed, in function of the aforementioned healthcare services provided within the scope of Non-Conventional Therapies (NCT), that, following the administrative doctrine provided in Circular Memorandum No. 30174, of 26.08.2015, the Claimant proceeded to the voluntary regularization of its tax situation, in the VAT context, with respect to the provision of Non-Conventional Therapies services, hereinafter NCT's, not including, naturally, the provision of services covered by the exercise of the professions of physician, dentistry, midwifery, nursing and other paramedical professions, as they are covered by the exemption provided for in art. 9, No. 1 CIVA. Nevertheless, in the course of the tax inspection, the AT 'presumed', without being supported by any fact and sufficient proof, that all the provision of services effected in a given building and recorded in the accounts in account 72112, correspond to the exercise of NCT. Omitting the fact that the provider identified in the invoices in question is qualified for the exercise of conventional therapeutics."

The Claimant considers that "i) the AT did not prove, as was its duty, that the services whose invoices were subject to correction and of the additional VAT assessment notices, actually correspond to NCT; ii) and that, from a legal point of view, the fact that providers qualified to exercise conventional therapies practice indistinctly or complementarily NCT does not entitle the AT to proceed to the correction of VAT and the issuance of additional assessments."

The Claimant states that "(...) it is on the basis of the description contained in the invoices that the applicable VAT rate should be determined. Recognizing the Tax Inspection that such description (consultations and treatments) translates evidence of the practice of provision of services effected by professionals qualified as physicians, or other paramedical professions, within the scope of such activity, that will be sufficient for the VAT exemption to be recognized." However, "(...) the AT merely proceeded to the corrections in question and issued the respective additional assessment notices, without having analyzed case by case, as was its duty and with respect to each of the service providers, whether the corresponding provision of services were, or were not, covered by the professions of physicians, dentists, midwives, nurses or other paramedical professions."

Indeed, the Claimant considers that, notwithstanding having provided the necessary evidence and requested by the AT, the latter "(...) merely presumed, without any evidentiary support, that all the provision of services effected in a given building and recorded in the accounts, in account 7212 corresponded to NCT, despite the fact that the respective provider identified in the invoices is qualified to exercise conventional therapeutics. (...) Thus, it was solely on the basis of a simple presumption, devoid of any proof, of the actual practice of NCT, that the AT denied the Claimant the right to exemption. Even if any type of evidence of the provision of NCT could be verified, the AT could not deny the right to exemption, when within the scope of the activity of a healthcare professional, conventional and non-conventional therapeutics are applied, indistinctly or complementarily, as a result of the ruling of the CJEU in the context of case No. C-555/15."

It adds that "the mere fact that the provision of services is recorded in the same aggregating account, corresponding, in essence to a cost center, which was designated by 'Naturopathic', could not mean that all the provision of services recorded there correspond to naturopathy services... Indeed, in the logic of the chart of accounts, these provision of services correspond to all consultations and treatment not related to 'Podology' or with the provision of services of the 'nursing home', which naturally cannot be reduced to naturopathy itself, as indeed results from the description of the invoices in question, which the AT omitted, despite the fact that the invoices in question were made available."

The Claimant states that "(...) including the price lists invoked, consultations of treatments effected by providers who use NCT and by qualified providers who use conventional therapeutics, the AT cannot merely conclude that all the provision of services necessarily boil down to NCT's, particularly when the Claimant had already regularized the VAT with respect to the provision of services that, according to the doctrine then in force, would translate to NCT. Thus, from the foregoing it is concluded that the AT did not prove, as was its duty, that the provision of services subject to the disputed additional assessment notices actually corresponded to provision of services related to non-conventional therapeutics, thereby violating the principle of material truth of the inquisitorial procedure, which results in the illegality of the disputed assessments and the compensatory interest assessments that depend thereon."

It further states that "(...) after identifying the service providers associated with the respective invoices, the Claimant further proceeded to send the AT the educational qualifications and certified copies of the respective professional credentials, demonstrating their quality as physicians, nurses and paramedical professionals. At issue, therefore, is a supposed application of NCT by physicians and other paramedical professionals, which the AT understands not to be covered by the scope of exemption" "(...) understanding which, according to the Claimant, 'flagrantly violates the CJEU case law on the matter, namely that reflected in Case C-555/15 (...)'"

Concluding, therefore, that "(...) the right to exemption cannot be denied when providers qualified for non-conventional therapies use NCT indistinctly or complementarily. In these terms, the disputed assessments are affected by illegality."

Regarding the legislative evolution that provides for and regulates the matter of paramedical professions of diagnosis and therapeutics for the purpose of application of the exemption under article 9 of the CIVA, the Claimant mentions that "(...) article 3 of Law 1/2017, conferred an interpretive nature on the wording of said article 8-A of law 71/2013."

Clarifying, the Claimant that "(...) the rule that this article 8-A interprets is the one that previously defined the VAT regime for those exercising paramedical professions, clarifying that it also applies to professionals engaged in the exercise of the non-conventional therapeutics referred to in article 2 of law 73/2013. The rule establishing the VAT regime applicable in the context of paramedical professions is article 9, paragraph 1 a) of the CIVA (...). Thus, the practical scope of article 8.-A of law 1/2017 is to clarify that, for VAT purposes, the professions of those engaged in the exercise of the NCT referred to in article 2 of Law No. 73/2012 are considered paramedical professions for VAT purposes." whereby, "(...) the provision of services effected in the exercise of professions of physicians or paramedics, even if they simultaneously use non-conventional therapies, should be covered within the scope of exemption.

Finally, it comes to request payment of compensatory interest and the costs paid with the provision of guarantee, pursuant to the provisions of article 43 and 53 of the General Tax Law.

III. The Respondent's Response

For its part, the AT comes, in its response, to defend itself in the following manner:

The Respondent states that "(...) from the visit made to the Claimant's premises, from the analysis of its accounts and to the elements that serve as their support, the tax inspection services (SIT) concluded that the Claimant develops conventional health and paramedical activities, as well as other health activities and non-conventional therapeutics (NCT)." Being that "[w]ith respect to NCT, it was found that no tax was assessed, since the Claimant considered them exempt under paragraph 1) of article 9 of the VAT Code. However, since such therapeutics did not constitute, at the time of the inspection procedure and of the facts, exempt operations, as results explicitly stated in the respective tax inspection report, to which reference is made and is hereby reproduced, and below is also explained, the due corrections were promoted and, consequently, the determination of the tax owed."

The Respondent clarifies that "(...) notwithstanding the regularization effected, the Claimant understands that the provision of services which, according to the general guidelines of the Tax and Customs Authority (AT), it subjected to tax, should, in light of Law No. 1/2017, of 16 January, as an interpretive rule, be qualified as exempt from the date of entry into force of Law No. 71/2013, of 2 September, which regulates Law No. 45/2003, of 22 August, regarding the professional exercise of the activities of application of NCT.", a position with which the Respondent does not agree, as it understands that "[d]efines Decree-Law No. 320/99, of 11 August, the general principles and regulation of the paramedical professions of diagnosis and therapeutics, enumerated in that first statute, whose paragraph 1 of article 3 reiterates as the matrix of paramedical activities, the use of scientific-based techniques for the purposes of promotion of health and prevention, diagnosis and treatment of disease, or rehabilitation."

"On the other hand, pursuant to paragraph 1 of article 2 of Decree-Law No. 320/99, grounded in paragraph 3 of article 1 and in the annex to Decree-Law No. 261/93, the following are the professions considered paramedical: clinical and public health laboratory technician; pathological anatomy technician; cytology and thanatology technician; audiology technician; cardiopulmonary technician; dietitian; pharmacy technician; physiotherapist; oral hygienist; nuclear medicine technician; neurophysiology technician; orthoptist; orthoprothetist; dental prosthesis technician; radiology technician; radiotherapy technician; speech therapist; occupational therapist; environmental health technician. Article 2 of Decree-Law No. 261/93 establishes that the exercise of paramedical activities depends on the verification of a set of conditions, with the aspects linked to access to such professions regulated in more detail in article 4 of Decree-Law No. 320/99. The exercise of these professions is further dependent, pursuant to article 5 of the same statute, of a professional title. For its part, national legislation recognized the validity of non-conventional therapies (NCT), pursuant to Law No. 45/2003, of 22.08 and Law No. 71/2013, of 02.09, amended by Law 1/2017, of 16.01. Thus, Law No. 45/2003 establishes the framework for the activity and exercise of professionals applying non-conventional therapeutics, as defined by the World Health Organization, determining in its article 3, paragraph 2 that 'For the purposes of application of the present law, the following are recognized as non-conventional therapeutics those practiced through acupuncture, homeopathy, osteopathy, naturopathy, phytotherapy and chiropractic.'

The Respondent adds that "(...) Law No. 1/2017, of 16 January, amended Law No. 71/2013, of 2 September, which regulates Law No. 45/2003, of 22 August, regarding the professional exercise of the activities of application of non-conventional therapeutics, adding to it article 8°-A. This legal provision, with the title 'VAT Regime', has an interpretive nature (...)" Now, "[s]ince the provision of services effected in the exercise of the paramedical professions, considered as such, under the terms and conditions defined in special legislation, are exempt from VAT, under paragraph 1) of article 9 of the VAT Code, it is found that the legislator manifested, in article 8.-A of Law No. 71/2013, the intention to exempt from tax the provision of services carried out in the exercise of the NCT professions identified and regulated in this law."

Effectively, the Respondent understands that "(...) for the application of the exemption provided for in paragraph 1) of article 9 of the VAT Code the following requirements must be met: (i) As to the nature of the services - the operations constitute healthcare assistance services, having as their objective to diagnose, alleviate and, to the extent possible, cure diseases or health anomalies, thus pursuing a therapeutic purpose; (ii) As to the quality of service providers - the provision of services is effected in the exercise of the NCT professions identified in article 2 of Law No. 71/2013."

Being that, according to the Respondent's defense "[a]rticle 8°-A, added to Law No. 71/2013, of 02.09, relates, therefore, to professionals engaged in the exercise of the following NCT, as regulated in that legal statute: (i) Acupuncture; (ii) Phytotherapy; (iii) Homeopathy; (iv) Traditional Chinese Medicine; (v) Naturopathy; (vi) Osteopathy and (vii) Chiropractic.", whereby, "[i]n light of the provisions of article 6 of Law No. 71/2013, the exercise of these professions is only permitted to holders of a professional credential issued by the Central Administration of the Health System, I.P. (ACSS). For its part, the issuance of the professional credential is conditioned on the possession of an adequate diploma, pursuant to article 5° of the same law, obtained following a course of studies compatible with the requirements set by government regulation."

Furthermore, "[w]ith regard to the tax framework of NCT, it is also important to consider the administrative instructions contained in Circular Memorandum No. 30189, of 02.05.2017, from the Tax Management Area - VAT, which revoked Circular Memorandum No. 30174, of 26.08.2015. As stated in the cited Circular Memorandum, 'Finding that the legislator attributed an interpretive nature to the provisions of article 8°-A, added to Law No. 71/2013, and therefore the exemption should be considered applicable from the date of entry into force of this law, that is, 2 October 2013, it is necessary to safeguard the situation of professionals who were already exercising some of the above-mentioned NCT activities.'"

"Indeed, these professionals did not comply with, nor could they comply with, the requirements relating to the possession of a professional credential created by Law No. 71/2013, being dependent on the application deadlines and completion of the curricular assessment procedure provided for in article 19° of the said law. Thus, given that the interpretive law is integrated into the interpreted law, the exemption provided for in paragraph 1) of article 9 of the VAT Code is applicable to the professionals referred to in article 19 of Law No. 71/2013, from the date of entry into force of this law, regardless of the status of the curricular assessment procedure mentioned above."

The Respondent further states that "[i]n this sense, and with a view to clarifying the meaning and scope of the interpretive nature attributed to article 8°-A of Law No. 71/2013, of 02.09, Service Instruction No. 30190, of 02.05.2017, from the Tax Management Area - VAT, was published, in which it is determined that:

'Considering the interpretive nature attributed to article 8°-A by article 3 of Law No. 1/2017, of 16 January, and the normative content of article 13 of the Civil Code (CC), it should be understood that the legislator intended to apply the tax exemption from the date of entry into force of Law No. 71/2013, that is, on 2 October 2013.

Therefore:

(i) The exemption provided for in paragraph 1) of article 9° of the VAT Code is not applicable to the provision of services carried out in the exercise of the NCT professions before the date of entry into force of Law No. 71/2013, of 2 September;

(ii) The exemption is applicable, from that date, to NCT professionals referred to in article 2 of Law No. 71/2013, who hold the professional credential referred to in article 6° of this law;

(iii) The exemption is also applicable, from the date of entry into force of Law No. 71/2013, to professionals who, on that date, were engaged in activities in one of the cited non-conventional therapeutics, and who were covered by the transitional provision provided for in article 19 of Law No. 71/2013.

In these cases, the exemption applies regardless of the possession of a professional credential and ceases immediately if, following the curricular assessment regulated in that rule, the Central Administration of the Health System, I.P. makes a decision not to grant a professional credential.

The exemption also ceases from the moment that 180 days counted from the date of publication of the regulations referred to in articles 5° and 6° of Law No. 71/2013 (that is, from the date of publication of the regulations governing the courses of studies relating to the NCT in question) have been exceeded, without the professional having initiated the curricular assessment procedure referred to in article 19°.'"

In the specific case, "[...] the provision of services of complementary medicines, namely shiatsu, lymphatic drainage, reiki, naturopathy, osteopathy, therapeutic massage, acupuncture, biomagnetic pair/magnetotherapy, through the providers E..., F..., G... (... NIPC...), H... (... NIPC...), I... (... NIPC...), J..., K... NIF..., L... (... NIPC...), M..., NIF..., N... and O..., carried out in the years 2012, 2013, 2014 and 2015 (...)". Now, as stated, from 02.10.2013, some of the cited provision of services, namely acupuncture, naturopathy and osteopathy benefit from exemption under article 9, paragraph 1), of the VAT Code, applicable by virtue of article 8-A of Law No. 71/2013, of 2.09, added by Law No. 1/2017, of 16.01, even though the professionals who were exercising such activities did not have the professional credential referred to in article 6 of Law No. 71/2013, in view of the transitional regime provided for in article 19 of the same Law."

The Respondent further states that "[c]onsidering that at the time of the inspection procedure (2016) it was not possible to foresee the above-mentioned legislative amendment, nor, naturally, the subsequent administrative instructions, it appears to us that the additional assessment notices, relating to the periods 2013-12T to 2015-12T, should be reviewed, after concrete analysis of the services provided. In this way, given that a procedure for official revision is pending, with No. ...2017..., within the scope of which the Claimant came to request the revision of the same tax acts impugned here, including the tax assessments resulting from the self-assessments resulting from the voluntary regularization carried out during the inspection action, with identical grounds, it will, in that forum, ascertain which values of services concretely provided are susceptible to integrating the exemption provided for in article 9, paragraph 1) of the VAT Code, which are the NCT specifically provided for in the aforementioned legislation."

Adding that "[a]s for the remaining periods, that is, from 2012-03T to 2013-09T, it must be determined in this forum whether the Claimant's claim is well-founded."

Regarding the services provided in this period, the Respondent understands that "[d]emonstrated, as was its duty, that the provision of services underlying the corrections promoted actually correspond to NCT and, to that extent, incapable of integrating the normative provision of article 9, paragraph 1) of the VAT code, since before the entry into force of Law No. 71/2013, such services were not contemplated there.", whereby "(...) the burden of proof incumbent on the AT was fully met, so whoever has to prove the contrary will be the Claimant, in accordance with the provisions of article 74, paragraph 1, of the LGT." Adding that "[i]t is that, contrary to what the Claimant alleges, because it is VAT self-assessments at issue, the burden of proof is incumbent on it."

Indeed, the Respondent further states that "(...) the fact is that, although the Claimant has submitted copies of some professional credentials, proving the qualification for the exercise of the professions of physician (J...), nurse (P...), physiotherapist (Q...), and diagnostic and therapeutics technician (G... and H...), it did not demonstrate that the same, in the case at hand, exercised provided the services in the exercise of their respective professional activity. Indeed, taking into account the description contained in the receipted invoices of the SAF-T billing and other evidence elements obtained by the SIT, within the scope of the inspection action, it results that the services provided by the aforementioned professionals fall within the scope of provision of non-conventional therapeutics services."

The Respondent further states that "(...) beyond contesting the qualification of the services as NCT, which it failed to achieve as results from the foregoing, the Claimant intends to convince the Tribunal that Law No. 1/2017 of 16.01 extends the VAT exemption to all NCT, even before its entry into force, invoking in support of its position, the decision of the Arbitral Tribunal delivered in case 111/2017-T."(...) "[i]t further appeals to the Court of Justice of the European Union (CJEU), more specifically the decision delivered in case C-555/15. It should be noted, however, that in the mentioned case no Judgment was delivered, but rather an Order, dated 14 April 2016, (...)"

The Respondent further contends that "(...) the command that serves as the matrix to paragraphs 1) and 2) of article 9 of the CIVA, specifically paragraph c) of paragraph 1 of article 132 of the VAT Directive, determines that the granting of the exemption 'to medical and paramedical professions' is determined under the conditions 'defined by the Member State in question'. In this way, unlike what is verified in relation to the concepts that integrate most of the rules of the common system establishing VAT exemptions, that EU provision assigns to the internal legislation of each Member State the task of outlining the professional notions invoked by it and, by inheritance, the rules required for the exercise of those professions."

"In this way, what the CJEU decided was that it is for the national court to verify whether the power of assessment conferred by the VAT Directive, in its article 132°, paragraph 1, subparagraph c), has been exceeded, which is not demonstrated, in the Portuguese case, regarding NCT."

Concluding that "(...) in light of all the foregoing, the Claimant has not made out its case."

IV. Settling the Issues

The Tribunal is competent and is regularly constituted, pursuant to subparagraph a) of paragraph 1 of article 2 and articles 5 and 6, all of the RJAT.

The parties have legal personality and capacity, demonstrate themselves to be legitimate and are regularly represented.

V. Factual Matters

With significance for the decision, the following facts are taken as proven:

1. The Claimant is a private law association, whose object aims, among others, the pursuit of social assistance objectives, promoting and protecting health, through the provision of preventive, curative and rehabilitation care and also through activities inherent in a nursing home – agreement of the parties -;

2. The Claimant has been registered, since 17 January 2007, as a healthcare provider, with the Health Regulatory Entity – cf. document no. 10 attached with the request for constitution of the arbitral tribunal -;

3. In the context of VAT, the Claimant has been framed, from 01.01.2012, in the normal monthly system, and is assessed for the exercise of the main activity, with CAE 87301- "support activities for elderly persons, with accommodation", and for the exercise of secondary activity, with CAE 86210-"general medical practice activities ambulatory clinic" – cf. administrative file -;

4. The Tax and Customs Authority conducted an external inspection action on the Claimant relating to the years 2012, 2013, 2014 and 2015, in compliance with Service Orders OI2016..., OI2016..., OI2016..., OI2016..., respectively – cf. administrative file -;

5. In that inspection action, the Tax Inspection Report was prepared with the following content:

"III - DESCRIPTION OF FACTS AND GROUNDS FOR PURELY ARITHMETIC CORRECTIONS

3.1 – LEGAL FRAMEWORK

3.1.1 - NON-CONVENTIONAL THERAPEUTICS

The basic framework of non-conventional therapeutics was established through Law No. 45/2003, of 22 August, more recently supplemented by Law No. 71/2013, of 2 September, which regulates that first one as to the professional exercise of the activities of application of non-conventional therapeutics, covering the access to the respective professions and their exercise, in the public or private sector, with or without profit purposes.

Paragraph 2 of article 3 of Law No. 45/2003 recognized as non-conventional therapeutic activities those practiced within "acupuncture, homeopathy, osteopathy, naturopathy, phytotherapy and chiropractic", this list being reiterated in subparagraphs a), b), c), e), f) and g) of article 2 of Law No. 71/2013, to which is added, by way of its subparagraph d), traditional Chinese medicine.

Pursuant to paragraph 1 of article 3 of Law No. 45/2003, non-conventional therapeutics are considered those that depart from a philosophical basis different from conventional medicine and apply specific diagnostic processes and therapeutics of their own.

Paragraph 1 of article 4 of Law No. 45/2003 indicates, as one of the guiding principles of non-conventional therapeutics, the individual right to choice of therapeutic method, based on an informed choice, about the safety, quality, effectiveness and possible risks.

Another guiding principle of non-conventional therapeutics, to which paragraph 4 of article 4 of Law No. 45/2003 alludes, consists in the defense of the well-being of the user, which includes complementarity with other health professions.

Both article 5 of Law No. 45/2003 and article 3 of Law No. 71/2013 establish that technical and deontological autonomy is recognized in the professional exercise of the practice of non-conventional therapeutics.

Under article 4, paragraph 1 of article 5, paragraphs 3 and 4 of article 6, paragraph 2 of article 11, article 17 and paragraphs 2 and 5 of article 19, all of Law No. 71/2013, the following matters are regulated through government decrees: activities comprised in the exercise of non-conventional therapist professions; course of study compatible with the bachelor's degree course required for each of the non-conventional therapeutic areas; rules for obtaining the professional credential required and fee to be paid for such purpose; requirements for licensing the places of exercise of non-conventional therapeutic activities; competencies and rules of functioning of the Advisory Board for Non-Conventional Therapeutics; fixing of the terms of the curricular assessment of candidates for obtaining a professional credential, to be carried out by the Central Administration of the Health System (ACSS), and the fee to be applied to the eventual issuance of a professional credential with provisional character.

Decree No. 207-A/2014 covers the characterization and functional content of the profession of naturopath, referring to subparagraph a) of paragraph 2 of its article 2 to the application of methods of diagnosis, prescription and treatments of their own, based on axioms and specific theories, as a result of a holistic, energetic and natural approach of the human being, using, as indicates paragraph 1 of the same article, phytotherapy, homeopathy, hydrotherapy, geotherapy, therapies of manipulation and other related methods.

Decree No. 207-B/2014 concerns the characterization and functional content of the profession of osteopath, elucidating subparagraph e) of paragraph 2 of its article 2 that osteopathy has as essential components of intervention the structural diagnosis, manipulative treatment and others necessary for proper osteopathic performance.

Decree No. 207-C/2014 has as its object the characterization and functional content of the profession of homeopath, which resorts, for prevention and treatment, to homeopathic medicines from substances called stocks or homeopathic raw materials, and whose theoretical principles on which it is based are, namely, the law of similarity, the principle of cure duration, the principle of the single remedy, the theory of infinite minimal dose and the theory of chronic disease, as indicated in paragraphs 1 and 2 of article 2 of the mentioned statute.

Decree No. 207-D/2014 covers the characterization and functional content of the profession of chiropractor, which is based on the diagnosis, treatment and prevention of disorders of the neuro-musculoskeletal system, mainly subluxation (in the concept of chiropractic), as well as the effects of these disorders on the general state of health and the well-being of the individual, as stated in paragraph 1 of its article 2, which places great importance on manual techniques, with or without the use of instruments, including the adjustment of subluxation (in the concept of chiropractic) and or the manipulation of joints, and which does not resort to medications or surgery, and values the biopsychosocial factors in the treatment of the person, according to that elucidated, respectively, in subparagraphs d) and e) of paragraph 2 of that same article.

Decree No. 207-E/2014 concerns the characterization and functional content of the profession of phytotherapist, which, pursuant to paragraph 1 and subparagraph a) of paragraph 2 of article 2 of that statute, uses, as therapeutic ingredients, substances from plants and puts into practice a holistic, energetic and natural conception of the human being, and methods of diagnosis, prescription and treatment of their own based on axioms and specific theories.

Decree No. 207-F/2014 has as its object the characterization and functional content of the profession of acupuncturist, referring to paragraph 1 of its article 2 to the use of methods of diagnosis, prescription and treatments of their own based on axioms and theories of acupuncture, using the network of meridians, acupuncture points and reflex zones of the human organism, with the purpose of preventing and treating energetic, physical and psychic disharmonies, while subparagraphs a) and b) of paragraph 2 of the same article refer to it a holistic, energetic and dialectical conception of the human being and a philosophy and methodology specific based on traditional Chinese medicine.

Decree No. 207-G/2014 relates to the characterization and functional content of the profession of specialist in traditional Chinese medicine, within which are used methods of prevention, diagnosis, prescription and treatments of their own, based on the theories of traditional Chinese medicine and its specific methods, namely, the stimulation of acupuncture points and meridians through different therapeutic methods, the prescription of phytotherapeutic formulas, dietary advice and exercises to promote and recover health, as stated in paragraph 1 of article 2 of the referred statute.

3.1.2 - PHYSICIANS, DENTISTS, MIDWIVES, NURSES AND OTHER PARAMEDICAL PROFESSIONS IDENTIFIED IN PARAGRAPH 1 OF ARTICLE 9 OF THE CIVA

As the CJEU recalls, in the Order delivered in case C-555/15, of 14.04.2016, regarding article 132, paragraph 1, subparagraph c) of Directive 2006/112, "26. (...) according to a literal interpretation of this provision, in order for a professional to be able to benefit from the exemption provided for therein, he must meet two requirements, namely, on the one hand, to carry out 'assistance' services and, on the other, that these services must be 'provided within the exercise of medical and paramedical activities, as defined by the Member State in question' (Solleveld and van den Hout-van Eijnsbergen judgment, C-443/04 and C-444/04, EU:C:2006:257, No. 23)."

It is accordingly incumbent to ascertain whether the provision of acupuncture services meets the requirements necessary for them to be assimilated to the provision of services effected in the exercise of the professions of physician, dentist, midwife, nurse and other paramedical professions, to which paragraph 1) of article 9 of the CIVA refers.

Physicians

Decree-Law No. 203/2004, of 18 August, which defines the legal framework for medical training after the bachelor's degree in Medicine, with a view to specialization, and establishes the general principles to which the respective process must be subject, determines in paragraph 1 of its article 2 that, after the bachelor's degree in Medicine, the medical internship begins, which corresponds to a single process of specialized medical training, theoretical and practical, having as its objective to qualify the physician for the technically differentiated exercise in the respective area of professional specialization.

Paragraph 2 of article 2 of Decree-Law No. 203/2004 provides that, without prejudice to the provisions of the previous paragraph, the autonomous exercise of medicine is recognized from the conclusion, with success, of the second year of medical internship training, stipulating paragraphs 1 and 2 of article 3 of the same statute that the medical internship is structured in areas of professional specialization, which are approved by a government regulation of the member responsible for the health area, under the proposal of the Medical Association and having heard the National Council of Medical Internship.

Pursuant to paragraph 3 of article 2 and annex I of the Regulation of Medical Internship, approved by Decree No. 251/2011, of 24 June4, the medical specialties are the following:

● pathological anatomy;
● anesthesiology;
● angiology/vascular surgery;
● cardiology;
● pediatric cardiology;
● cardiac surgery;
● general surgery;
● maxillofacial surgery;
● pediatric surgery;
● plastic, reconstructive and aesthetic surgery;
● thoracic surgery;
● dermatovenereology;
● infectious diseases;
● endocrinology/nutrition;
● stomatology;
● gastroenterology;
● medical genetics;
● gynecology/obstetrics;
● clinical hematology;
● imunoallergology;
● immuno-hemotherapy;
● sports medicine;
● physical medicine and rehabilitation;
● general and family medicine;
● internal medicine;
● legal medicine;
● nuclear medicine;
● occupational medicine;
● nephrology;
● neurosurgery;
● neurology;
● neuroradiology;
● ophthalmology;
● medical oncology;
● orthopedics;
● otorhinolaryngology;
● clinical pathology;
● pediatrics;
● pneumology;
● psychiatry;
● child and adolescent psychiatry;
● radiodiagnosis;
● radiotherapy;
● rheumatology;
● public health; and
● urology.

In accordance with that established in article 8 of the Statute of the Medical Association, approved by Decree-Law No. 282/77, of 5 July, the exercise of medicine depends on registration with the Medical Association, establishing article 9 of the same statute that only those Portuguese and foreign physicians licensed in Medicine by a Portuguese or foreign higher education institution may be registered with the Medical Association, provided that, in the latter case, they have obtained official course equivalence duly recognized by the Medical Association.

The Code of Medical Ethics and, in paragraphs 1 and 2 of its article 32, respectively, provides that the physician should only make decisions dictated by science and his or her conscience, without prejudice to having the freedom to choose diagnostic and therapeutic means, but must refrain from unnecessarily prescribing costly examinations or treatments or performing superfluous medical acts.

Dentists

With respect to dental physicians, paragraph 2 of article 3 of the Statute of the Dental Association, approved by Law No. 110/91, of 29 August7, qualifies as such the graduate of a higher education institution or school of dentistry, Portuguese or foreign, provided that, in the latter case, he or she has obtained course equivalence recognized by the DMA (Dental Association), as well as one who, being a graduate of another school, obtains the said equivalence, in accordance with the legal provisions in force, and equally recognized by the DMA, establishing the respective article 9 that for the exercise of dentistry it is obligatory to be registered with the DMA.

Pursuant to paragraph 1 of article 19 of the Code of Dental Ethics, the dental physician must refrain from any therapeutic or diagnostic care not scientifically justified, as well as from reckless experimentation or from the use of diagnostic or therapeutic processes that may produce alteration of consciousness, with diminution of free determination or responsibility, or provoke morbid states, save with the formal consent of the patient or his or her legal representative, preferably in writing, after having been informed of the risks to which he or she is exposed, and always in the interest of the patient.

Presently, in light of the academic and professional title of dental physician, the term "dentist", contained in paragraph 1 of article 9 of the CIVA, corresponds in practice only to a profession that the law itself qualifies as residual in character, whose exercise depends on the possession of the title of dentist and the respective professional certificate, covering only the professionals identified in the Official Gazette, 2nd Series, No. 270, of 22 November 2009, with any measures aimed at regularizing future professional situations expressly prohibited, as determined in article 2 of Law No. 40/2003, of 22 August, which regulates and disciplines the professional activity of dentistry.

According to paragraph 1 of article 7 of the Code of Dental Ethics, contained in annex I to Decree No. 168/2011, of 20 April, dentists have the duty to ensure that their patient receives the best oral healthcare within their limits of competence, and to act with the greatest respect and correctness, being, under paragraph 11 of the same code, required to refrain from the application of any therapeutic or diagnostic care not scientifically justified, as well as from reckless experimentation or from the use of processes that may produce alteration of consciousness, with diminution of free determination or responsibility, or provoke morbid states.

Nurses and Midwives

For its part, the Regulation of Professional Practice of the Nurse (REPE), approved by Decree-Law No. 161/96, of 4 September", in paragraph 1 of its article 4, conceptualizes nursing as the profession that, in the health area, has as its objective to provide nursing care to the human being, whether healthy or sick, throughout the life cycle, and to the social groups in which he or she is integrated, in such a way that they maintain, improve and recover health, helping them to achieve their maximum functional capacity as quickly as possible.

Pursuant to paragraphs 2 and 3 of article 4 of the REPE, by "nurse" is meant the professional trained with a legally recognized nursing course, to whom was attributed a professional title that recognizes scientific, technical and human competence for the provision of general nursing care to the individual, family, groups and community, at the levels of primary, secondary and tertiary prevention, and by "specialist nurse" is meant the nurse trained with a nursing specialization course or a specialized higher education course in nursing, to whom was attributed a professional title that recognizes scientific, technical and human competence to provide, in addition to general nursing care, specialized nursing care in the area of his or her specialty.

As illustrated by paragraph 5.2 of annex II of Law No. 9/2009, of 4 September", relating to the recognition of professional qualifications within the EU, the term "midwife", contained in paragraph 1 of article 9 of the CIVA, corresponds to the professional title of nurse specialist in maternal and obstetric health, presently having the full designation of nurse specialist in maternal, obstetric and gynecological health nursing, in accordance with specific competencies contained in Regulation No. 127/2011, of 18 February.

In accordance with paragraph 4 of article 4 of the REPE, nursing care is the autonomous or interdependent intervention to be carried out by the nurse within the scope of his or her professional qualifications, being one of the characteristics of nursing care, indicated in subparagraph 3) of article 5 of the REPE, the use of scientific methodology, which includes identification of health problems in general and nursing problems in particular, in the individual, family, groups and community; collection and assessment of data on each situation that presents itself; formulation of the nursing diagnosis; elaboration and carrying out of plans for the provision of nursing care; correct and adequate execution of the necessary nursing care; assessment of the nursing care provided and reformulation of interventions.

According to article 6 of the REPE, the exercise of the nursing profession is conditioned by the obtaining of a professional credential, to be issued by the Nurses Association.

Paramedical Activities

For its part, Decree-Law No. 261/93, of 24 August, regulates the professional health activities qualified as paramedical, whose paragraph 1 of article 1 indicates that the same comprise the use of scientific-based techniques for the purposes of health promotion and prevention, diagnosis and treatment of disease, or rehabilitation, with the general principles and regulation of the paramedical professions of diagnosis and therapeutics being defined in Decree-Law No. 320/99, of 11 August, enumerated in that first statute, whose paragraph 1 of article 3 reiterates the use in paramedical activities of scientific-based techniques with the purposes described above.

Pursuant to paragraph 1 of article 2 of Decree-Law No. 320/99, grounded in paragraph 3 of article 1 and in the annex to Decree-Law No. 261/93, the following are the professions considered paramedical:

• clinical and public health laboratory technician;
• pathological anatomy, cytology and thanatology technician;
• audiology technician;
• cardiopulmonary technician;
• dietitian;
• pharmacy technician;
• physiotherapist;
• oral hygienist;
• nuclear medicine technician;
• neurophysiology technician;
• orthoptist;
• orthoprothetist;
• dental prosthesis technician;
• radiology technician;
• radiotherapy technician;
• speech therapist;
• occupational therapist;
• environmental health technician.

In accordance with paragraph 2 of article 1 of Decree-Law No. 261/93, the activities exercised, within the scope of their own competencies, by professionals with mandatory registration in a public-law association and also by dentists, nurses and midwives, are not covered by this statute.

In accordance with paragraph 1 of article 2 of Decree-Law No. 261/93, the exercise of paramedical professions depends on the possession of a course from a recognized educational establishment, a diploma or certificate recognized as equivalent, or a professional certificate or equivalent title, with the aspects linked to access to such professions regulated in more detail in article 4 of Decree-Law No. 320/99.

Law No. 65/2014, of 28 August, which establishes the regime for access to and exercise of the profession of podologist, with or without profit purposes, as well as the issuance of the respective professional title, characterizes podology, according to subparagraph g) of its article 2, as the science of the health area that has as its objective the research, study, prevention, diagnosis and therapeutics of affections, deformities and alterations of the feet, establishing paragraph 1 of its article 7 that the said profession is equated, for all legal purposes, to a paramedical profession.

This incursion into national regulations that regulate the professions referred to in paragraph 1) of article 9 of the CIVA, prima facie, allows the conclusion that the professions whose exercise consists in the carrying out of provision of assistance services that fall within the legal qualification of non-conventional therapeutics do not have a framework therein.

3.2 - EXEMPTIONS IN ACTIVITIES LINKED TO HUMAN HEALTH

In paragraphs 1 to 5 of article 9 of the CIVA, a set of exemptions is provided for in the area of human health, in particular in the field of medical and health assistance. The said internal provisions are based on the provisions in subparagraphs b) to e) of paragraph 1 of article 132 of the VAT Directive. In general terms, the exemptions provided for in paragraphs 1 and 2 of article 9 of the CIVA, corresponding to subparagraphs c) and b) of paragraph 1 of article 132 of the VAT Directive, respectively, relate to services whose purpose is to diagnose, even if merely for prevention purposes, as well as to treat and, to the extent possible, cure diseases or health anomalies.

This viewpoint has already been expressed by the CJEU in numerous decisions, regarding the EU provisions that serve as their basis.

Paragraph 1 of article 9 of the CIVA exempts from tax the provision of services effected in the exercise of the activities of physician, dentist, midwife, nurse and other paramedical professions. The provision is based on subparagraph c) of paragraph 1 of article 132 of the VAT Directive, according to which Member States must exempt "the provision of assistance services effected within the exercise of medical and paramedical professions, as defined by the Member State in question."

Regarding the rule contained in subparagraph c) of paragraph 1 of article 132 of the VAT Directive, the CJEU, in its judgment of 27 April 2006 (C-443/04 and C-444/04, Solleveld and others, Nos. 29 and 37), stressed that it is incumbent upon each Member State to define in its internal law the paramedical professions whose services are exempt from VAT, since such a rule grants Member States a power of assessment in that respect. However, the exemption must be applied only to services provided by providers with the required professional qualifications.

In Portuguese internal legislation, the definition of paramedical activities is contained in Decree-Law No. 261/93, of 24 August, and Decree-Law No. 320/99, of 11 August, already explained in chapter 3.1.2.

According to paragraph 1 of article 2 of Decree-Law No. 261/93, the exercise of paramedical activities depends on the possession of a course from a recognized educational establishment, a diploma or certificate recognized as equivalent, or a professional certificate or equivalent title. Complementarily, article 4 of Decree-Law No. 320/99, regarding the exercise of the professions of diagnosis and therapeutics, specifies the conditions for access to those professions.

Regarding the rule presently contained in subparagraph c) of paragraph 1 of article 132 of the VAT Directive, the CJEU affirmed in several rulings, among others in the judgment of 10 September 2002 (C-141/00, Kugler, No. 26), that the same has an objective character, defining exempt operations according to the nature of the services provided, without mentioning the legal form of the provider. For that reason, in order for the exemption to operate, it is sufficient that these are medical or paramedical services and that they are carried out by persons who possess the required professional qualifications, without it being possible to discriminate according to whether the services are provided in the course of activity by a natural or legal person.

For its part, article 132, paragraph 1, subparagraph b) of the VAT Directive exempts medical and health services provided by hospital establishments, clinics, dispensaries and similar. This exemption extends to operations closely connected with hospitalization and medical assistance, understood as transmissions of goods or provision of accessory services that logically fit within the provision of hospitalization and medical assistance services, provided they constitute an indispensable stage in the process of providing exempt services, in order to achieve the therapeutic purposes pursued.

Thus, in order for the exemption provided for in article 132, paragraph 1, subparagraph b) of the VAT Directive to apply, it is necessary that:

• hospitalization or medical assistance or operations closely related are at issue;
• ensured by bodies; and
• of public law or, under analogous conditions, by other hospital establishments, medical assistance and diagnosis centers or of the same nature, in any case, duly recognized.

It should be noted that the CJEU has consistently assimilated the concept of medical assistance, provided for in subparagraph b), to the concept of provision of assistance services within the exercise of medical and paramedical professions, provided for in subparagraph c).

However, it results from CJEU case law that the activities of aesthetic medicine, aesthetic, plastic and reconstructive surgery are not encompassed within the concept of medical assistance.

3.3 - NON-CONVENTIONAL THERAPEUTICS AND THE EXEMPTIONS PROVIDED FOR IN ARTICLE 9, PARAGRAPHS 1 AND 2 OF THE CIVA

In accordance with that stated above, the understanding assumed by the AT regarding paragraph 1 of article 9 of the CIVA goes in the direction of limiting the exemption provided for therein to provision of assistance services effected in the exercise of the professions of physician, including dental physician, of dentist and of nurse, including nurse specialist in maternal and obstetric and gynecological health and (former midwife), as well as professions that are qualified as paramedical, whose notion and list Decree-Laws No. 261/93 and No. 320/99 define. Whence it results with full evidence that the provision of services effected in the exercise of the professions of acupuncturist, of specialist in traditional Chinese medicine, of phytotherapist, of homeopath, of naturopath, of osteopath and of chiropractor are not encompassed within the scope of paragraph 1 of article 9 of the CIVA.

The understanding of the AT is supported by the fact that the command that serves as the matrix to paragraph 1 of article 9 of the CIVA, specifically subparagraph c) of paragraph 1 of article 132 of the VAT Directive, reconduce the granting of the exemption to the medical and paramedical professions, as defined by the Member State in question. Unlike what occurs in relation to the concepts that integrate most of the rules of the common system establishing VAT exemptions, that EU provision assigns to the internal legislation of each Member State the task of outlining the professional notions evoked by it.

Indeed, as a general rule, the concepts that integrate VAT exemption rules constitute autonomous notions of EU law, which must be interpreted in the general context of the common system of taxation, and not on the basis of definitions specific to each Member State, namely those imported from other areas of taxation or other branches of law, except when the rule in question expressly permits it, as occurs in the section in question of subparagraph c) of paragraph 1 of article 132 of the VAT Directive. Whence the margin of autonomy granted to Member States, in terms of the consequences to be drawn in the context of VAT from the definitions of medical and paramedical professions that exist in each one of them, does not impose on them a uniform interpretation of such concepts. Thus, in the absence of definitions directly incorporated into VAT legislation, the interpretive rules referred to in article 11 of the General Tax Law (LGT) necessarily apply. Now, in the absence of definitions directly adapted in VAT legislation, paragraph 2 of article 11 of the LGT entails that the content of the term paramedical must be interpreted in the sense attributed to it in other branches of law.

This has been, moreover, the scope that the AT, as well as the national courts themselves, have repeatedly attributed to the expression "paramedical professions" contained in that subparagraph, thus referring to the configuration of its content given by Decree-Law No. 261/93 and by Decree-Law No. 320/99.

In any case, it should be noted that, despite the margin of autonomy conferred on Member States, such does not mean that it is not subject to limitations, either those resulting from the objective of subparagraph c) of paragraph 1 of article 132 of the VAT Directive, or the principles of EU law applicable to the common system of taxation.

Beginning with a generic reference to the principle of neutrality that informs the common VAT system, the same has a dual content. On the one hand, it requires that economic operators supplying similar goods or services, who are in competition with each other, be treated identically with respect to VAT, in order to avoid any distortion of competition. On the other hand, the principle of neutrality implies that taxable persons may, as a general rule, in relation to goods and services acquired for the exercise of their activities taxed in this tax, avail themselves of relief from VAT charged on those goods and services.

Within the scope of the exemption presently contained in subparagraph c) of paragraph 1 of article 132 of the VAT Directive, the CJEU has also stated that the interpretation of the same is subject to the principle of fiscal neutrality, in the first sense indicated above, as results from that noted in the judgments of 6 November 2003, C-45/01, Dornier, Nos. 42, 44 and 49), of 27 April 2006 (C-443/O4 and C-444/O4, Solleveld and others, Nos. 35, 36, 39 and 41) and of 8 June 2006 (C-106/O5, L.u.P., Nos. 24, 32, 36 and 48). To this extent, the application of the exemption provided for in subparagraph c) of paragraph 1 of article 132 of the VAT Directive must include, from the outset, economic operators who are in competition with each other.

In this context, it does not appear that the exercise of the professions of acupuncturist, of specialist in traditional Chinese medicine, of phytotherapist, of homeopath, of naturopath, of osteopath or of chiropractor consists in the carrying out of provision of services that are in direct competition with the exercise of the professions indicated in paragraph 1 of article 9 of the CIVA, and that the respective taxation collides, at least in a strict sense, with the principle of fiscal neutrality. The benefit of such services does not have as its genesis an indifferent choice of patients and, yes, a deliberate option of these to resort to its specific methods, there being, consequently, a relationship of complementarity with conventional therapeutics, but not a relationship of competition with these.

The CJEU has expressed itself in the sense that the principle of fiscal neutrality constitutes an expression, in the VAT field, of the general principle of equal treatment, stressing that, while a strict violation of the first can only occur in relation to competing economic operators, the aspect linked to equal treatment prevents other types of discrimination in tax matters, that affect economic operators who, not necessarily in a position of competition, find themselves in a comparable situation in other respects.

Regarding the principle of equal treatment, the CJEU, notwithstanding not having ceased to state that the terms of an EU law provision must be, as a general rule, interpreted autonomously and uniformly throughout the EU, in light of the context and purposes pursued, considered that this is not the case when the provision contains an express reference to Member State law to determine its meaning and scope. Now, regarding the rule contained in subparagraph c) of paragraph 1 of article 132 of the VAT Directive, in the judgment of 27 April 2006 (C443/04 and C-444/04, Solleveld and others, Nos. 29 and 37), the CJEU reiterated that it is incumbent upon each Member State to define in its internal law the paramedical professions whose services are exempt from VAT, since such a rule grants Member States a power of assessment in that respect, provided it is only applied to services provided by providers with the required professional qualifications in law. Although a reference to the internal law of each Member State occurs in the case of subparagraph c) of paragraph 1 of article 132 of the VAT Directive, it cannot be lost sight of, however, that in No. 35 of that same judgment, notwithstanding having recognized the margin of free assessment attributed to Member States in that provision, the CJEU also added that the requirement of a correct and straightforward application of exemptions does not permit Member States to prejudice the objectives pursued by the Directive, nor the principles of EU law, in particular the principle of equal treatment, which translates, in the context of VAT, into the principle of fiscal neutrality.

The differentiated treatment given to non-conventional therapeutics, in light of the autonomy conferred on Member States by subparagraph c) of paragraph 1 of article 132 of the VAT Directive, reflects, in the first place, the objective difference as to their nature and formation requirements of the respective professionals, proper to the therapeutics covered by Laws No. 45/2003 and 71/2013, and by Decrees No. 207-A/2014 to 207-G/2014 and of the professions identified in paragraph 1 of article 9 of the CIVA.

Still within the framework of objective dissimilarities with the professions inserted in paragraph 1 of article 9 of the CIVA, non-conventional therapeutic activities depart from a philosophical basis different from conventional medicine and apply specific diagnostic processes and therapeutics of their own, enjoying technical and deontological autonomy, not consubstantiating the same types of interventions, acts, processes, methods, techniques or specialties associated with the professions mentioned in that CIVA provision.

The WHO itself defines as non-conventional therapeutics, therapeutics that depart from a philosophical basis different from conventional medicine and apply specific processes and therapeutics of their own, recognizing as such those practiced, namely, in the exercise of acupuncture, homeopathy, osteopathy, naturopathy, phytotherapy and chiropractic.

Regarding the exemption provided for in subparagraph b) of paragraph 1 of article 132 of the VAT Directive, the CJEU considers that the expression "medical assistance", appearing in subparagraph b) of paragraph 1 of article 132 of the VAT Directive, encompasses the totality of the provision of services covered in subparagraph c), and that the difference between the said subparagraphs is not so much of the nature of the services provided, but the place where they are provided. Thus, covered by subparagraph b) are healthcare services provided in establishments pursuing social purposes of human health protection, while subparagraph c) relates to healthcare provided outside hospital establishments.

In conclusion,

Regarding the framework of NCT within the scope of article 9 of the CIVA, the AT has pronounced itself at various times in the form of Binding Information, Other Administrative Information and Administrative Instructions, namely:

• 17/12/2004 - Memorandum No. ... from the Office of the Director General to the Portuguese Association of Acupuncture Professionals - Framework in VAT and IRC of the exercise of Acupuncture

• 14/O1/2005 - Memorandum No. ... from DSCIVA to the Portuguese Association of Acupuncture Professionals - VAT framework for acupuncture activity

• 07/03/2005 - Binding Information in Process No. 1301 2004003 with Order from SDG-IVA, subject: Medical and paramedical activities. Activity of chiropractor

• 11/06/2007 - Information in Process I301 2007077, with Order from SDG-DG; subject: Acupuncture.

• 21/08/2007 - Binding Information in Process No. I301 2007027 with Order from SDG-IVA, subject: Acupuncture.

• 8/09/2008 - Information No. 1764, Order from Director General - Framework in VAT of acupuncture activity

• 26/08/2015 – Circular Memorandum No. 30174 - VAT Framework of Non-Conventional Therapeutic Activities

In the administrative doctrine produced regarding non-conventional therapeutic activities identified, that is, acupuncture and chiropractic, the AT assumed a consistent position over time, clarifying and informing that these activities are subject to VAT at the normal rate and not exempt, as demonstrated.

In the first administrative information of 17/12/2004, under memorandum no. … from the Office of the Director General, for clarification of the framework in VAT and IRC of the exercise of Acupuncture, the AT (then DGCI) came, in information prepared for the Portuguese Association of Acupuncture Professionals (APPA), of which Dr. R... is president, the following was clarified (cf. in items 3 and 4, which are transcribed):

"3 - According to Decree-Law No. 261/93, of 24/07, statute that regulates the exercise of professional health activities designated by paramedical, it is verified, as was already stated above, that the activity of acupuncture is not on the list referred to, consequently it is not possible to apply the VAT exemption to which subparagraph b) of paragraph 1 of article 9 of the CIVA refers, since it does not fit into any of the professional activities referred to therein.

"4 - In light of the foregoing it is concluded that the activity of acupuncture does not fit within any of the exemptions referred to in article 9 of the CIVA, nor in any other VAT exemption rules contained in legislation complementary to that code."

This position was reaffirmed, either in binding information, issued, among others, in Process 1301 2007027 of 21/08/2007, or in Information No. 135 of 6/10/2007, on the framework of acupuncture activities and in Information No. 1764 from the DG of 08/09/2008, or also in Circular Memorandum No