VAT Exemption for Non-Conventional Therapies: Scope of Interpretive Law - CAAD 638/2017-T

Arbitral Decision

The arbitrators Advisor Maria Fernanda Maçãs (arbitrator president), Prof. Doctor Manuel Pires and Dr. João Taborda da Gama, agree:

Report

A..., LDA., with the collective person number..., with registered office at Rua..., ..., ...-... Lisbon, came, under the terms of subparagraph a) of no. 1 of article 2 and article 10 of Decree-Law no. 10/2011, of 20 January (Legal Framework for Arbitration in Tax Matters - RJAT), and of Ordinance no. 112-A/2011, of 22 March, to present a request for constitution of an Arbitral Court, to obtain an arbitral ruling on the legality:

a) of additional assessment acts of Value Added Tax ("VAT"), identified with nos. 2016..., of 15.09.2016, in the amount of € 32,023.02, 2016..., of 15.09.2016, in the amount of € 34,996.58, 2016..., of 15.09.2016, in the amount of € 39,680.91, 2016..., of 15.09.2016, in the amount of € 34,175.06, 2016..., of 15.09.2016, in the amount of € 39,473.70, 2016..., of 15.09.2016, in the amount of € 35,743.87, 2016..., of 15.09.2016, in the amount of € 32,787.47, 2016..., of 15.09.2016, in the amount of € 32,649.55, 2016..., of 15.09.2016, in the amount of € 30,702.36, 2016..., of 15.09.2016, in the amount of € 35,908.26, 2016..., of 15.09.2016, in the amount of € 32,666.32 and 2016..., of 15.09.2016, in the amount of € 26,519.81, relating to 2012/01, 2012/02, 2012/03, 2012/04, 2012/05, 2012/06, 2012/07, 2012/08, 2012/09, 2012/10, 2012/11 and 2012/12, respectively, whose payment deadline dates ended on 15.11.2016;

b) of additional VAT assessment acts identified with nos. 2016..., of 15.09.2016, in the amount of € 34,664.34, 2016..., of 15.09.2016, in the amount of € 32,062.12, 2016..., of 15.09.2016, in the amount of € 33,537.28, 2016..., of 15.09.2016, in the amount of € 40,734.65, 2016..., of 15.09.2016, in the amount of € 42,754.22, 2016..., of 15.09.2016, in the amount of € 37,660.55, 2016..., of 15.09.2016, in the amount of € 41,480.10, 2016..., of 15.09.2016, in the amount of € 34,929.43, 2016..., of 15.09.2016, in the amount of € 33,740.28, 2016..., of 15.09.2016, in the amount of € 37,232.29, 2016..., of 15.09.2016, in the amount of € 34,984.86 and 2016..., of 15.09.2016, in the amount of € 27,493.72, relating to 2013/01, 2013/02, 2013/03, 2013/04, 2013/05, 2013/06, 2013/07, 2013/08, 2013/09, 2013/10, 2013/11 and 2013/12, respectively, whose payment deadline dates ended on 15.11.2016;

c) of additional VAT assessment acts identified with nos. 2016..., of 15.09.2016, in the amount of € 35,787.12, 2016..., of 15.09.2016, in the amount of € 33,502.53, 2016..., of 15.09.2016, in the amount of € 37,347.20, 2016..., of 15.09.2016, in the amount of € 36,116.90, 2016..., of 15.09.2016, in the amount of € 43,117.71, 2016..., of 15.09.2016, in the amount of € 40,930.04, 2016..., of 15.09.2016, in the amount of € 44,253.98, 2016..., of 15.09.2016, in the amount of € 31,640.10, 2016..., of 15.09.2016, in the amount of € 35,103.46, 2016..., of 15.09.2016, in the amount of € 39,580.43, 2016..., of 15.09.2016, in the amount of € 37,674.77 and 2016..., of 15.09.2016, in the amount of € 31,266.04, relating to 2014/01, 2014/02, 2014/03, 2014/04, 2014/05, 2014/06, 2014/07, 2014/08, 2014/09, 2014/10, 2014/11 and 2014/12, respectively, whose payment deadline dates ended on 15.11.2016; and

d) of additional VAT assessment acts identified with nos. 2016..., of 19.09.2016, in the amount of € 39,881.52, 2016..., of 19.09.2016, in the amount of € 30,252.85, 2016..., of 19.09.2016, in the amount of € 39,283.49, 2016..., of 19.09.2016, in the amount of € 40,015.26, 2016..., of 19.09.2016, in the amount of € 40,469.06, 2016..., of 19.09.2016, in the amount of € 42,306.65, 2016..., of 19.09.2016, in the amount of € 41,452.78, 2016..., of 19.09.2016, in the amount of € 32,743.36, 2016..., of 19.09.2016, in the amount of € 36,647.82, 2016..., of 19.09.2016, in the amount of € 38,261.78, 2016..., of 19.09.2016, in the amount of € 37,003.65 and 2016..., of 19.09.2016, in the amount of € 31,948.10, relating to 2015/01, 2015/02, 2015/03, 2015/04, 2015/05, 2015/06, 2015/07, 2015/08, 2015/09, 2015/10, 2015/11 and 2015/12, respectively, whose payment deadline dates ended on 18.11.2016;

• as well as

e) of the respective interest assessments identified with nos. 2016..., of 15.09.2016, in the amount of € 5,832.37, 2016..., of 15.09.2016, in the amount of € 6,262.42, 2016..., of 15.09.2016, in the amount of € 6,969.84, 2016..., of 15.09.2016, in the amount of € 5,882.58, 2016..., of 15.09.2016, in the amount of € 6,668.86, 2016..., of 15.09.2016, in the amount of € 5,916.96, 2016..., of 15.09.2016, in the amount of € 5,315.88, 2016..., of 15.09.2016, in the amount of € 5,185.89, 2016..., of 15.09.2016, in the amount of € 4,765.28, 2016..., of 15.09.2016, in the amount of € 5,462.80, 2016..., of 15.09.2016, in the amount of € 4,858.32 and 2016..., of 15.09.2016, in the amount of € 3,850.92, relating to 2012/01, 2012/02, 2012/03, 2012/04, 2012/05, 2012/06, 2012/07, 2012/08, 2012/09, 2012/10, 2012/11 and 2012/12, respectively, whose payment deadline dates ended on 15.11.2016;

f) of interest assessments identified with nos. 2016..., of 15.09.2016, in the amount of € 4,926.93, 2016..., of 15.09.2016, in the amount of € 4,451.38, 2016..., of 15.09.2016, in the amount of € 4,545.63, 2016..., of 15.09.2016, in the amount of € 5,377.93, 2016..., of 15.09.2016, in the amount of € 5,508.32, 2016..., of 15.09.2016, in the amount of € 4,715.49, 2016..., of 15.09.2016, in the amount of € 5,061.57, 2016..., of 15.09.2016, in the amount of € 4,147.08, 2016..., of 15.09.2016, in the amount of € 3,887.25, 2016..., of 15.09.2016, in the amount of € 4,170.92, 2016..., of 15.09.2016, in the amount of € 3,799.99 and 2016..., of 15.09.2016, in the amount of € 2,892.66, relating to 2013/01, 2013/02, 2013/03, 2013/04, 2013/05, 2013/06, 2013/07, 2013/08, 2013/09, 2013/10, 2013/11 and 2013/12, respectively, whose payment deadline dates ended on 15.11.2016;

g) of interest assessments identified with nos. 2016..., of 15.09.2016, in the amount of € 3,655.11, 2016..., of 15.09.2016, in the amount of € 3,307.65, 2016..., of 15.09.2016, in the amount of € 3,555.91, 2016..., of 15.09.2016, in the amount of € 3,319.71, 2016..., of 15.09.2016, in the amount of € 3,825.80, 2016..., of 15.09.2016, in the amount of € 3,487.76, 2016..., of 15.09.2016, in the amount of € 3,625.13, 2016..., of 15.09.2016, in the amount of € 2,487.53, 2016..., of 15.09.2016, in the amount of € 2,640.25, 2016..., of 15.09.2016, in the amount of € 2,846.50, 2016..., of 15.09.2016, in the amount of € 2,572.83 and 2016..., of 15.09.2016, in the amount of € 2,035.55, relating to 2014/01, 2014/02, 2014/03, 2014/04, 2014/05, 2014/06, 2014/07, 2014/08, 2014/09, 2014/10, 2014/11 and 2014/12, respectively, whose payment deadline dates ended on 15.11.2016; and

h) of interest assessments identified with nos. 2016..., of 19.09.2016, in the amount of € 2,485.71, 2016..., of 19.09.2016, in the amount of € 1,782.49, 2016..., of 19.09.2016, in the amount of € 2,180.72, 2016..., of 19.09.2016, in the amount of € 2,085.00, 2016..., of 19.09.2016, in the amount of € 1,979.65, 2016..., of 19.09.2016, in the amount of € 1,925.39, 2016..., of 19.09.2016, in the amount of € 1,745.28, 2016..., of 19.09.2016, in the amount of € 1,263.42, 2016..., of 19.09.2016, in the amount of € 1,297.26, 2016..., of 19.09.2016, in the amount of € 1,228.23, 2016..., of 19.09.2016, in the amount of € 1,057.69 and 2016..., of 19.09.2016, in the amount of € 807.84, relating to 2015/01, 2015/02, 2015/03, 2015/04, 2015/05, 2015/06, 2015/07, 2015/08, 2015/09, 2015/10, 2015/11 and 2015/12, respectively, whose payment deadline dates ended on 18.11.2016;

• and further,

i) of the decision dismissing gracious objection no. ...2017..., handed down on 31.08.2017, by order of the Deputy Director of Finance, in substitution regime, and notified through Official Letter no. ..., of 05.09.2017.

It further requests that the Tax Authority be ordered to pay compensation for the provision of wrongful guarantee, under the terms of article 53 of the General Tax Law (LGT).

The request for constitution of the arbitral tribunal, in which the Arbitrator to be designated by the Applicant (Dr. João Taborda da Gama) was identified, was accepted by the President of CAAD and notified to the Tax and Customs Authority (AT) which appointed Prof. Doctor Manuel Pires as arbitrator.

The arbitrators designated by the parties designated by agreement Advisor Maria Fernanda Maçãs as arbitrator president, having communicated acceptance of the assignment within the deadline.

Having notified the parties of such designation, no objection was raised, therefore, in compliance with the provisions of subparagraph c) of no. 1 and no. 8 of article 11 of RJAT, as amended by article 228 of Law no. 66-B/2012, of 31 December, the Collective Arbitral Court was constituted on 8 March 2018.

To substantiate the request for arbitral ruling, the Applicant attached a legal opinion from Prof. XXX, and, after identifying the subject matter of the proceedings, invoking the fulfillment of procedural requirements, and describing the activity of acupuncture and its classification, alleged, in summary, the following:

It considers that there is no "legal tax basis" for the assessment acts indicated in 1, invoking several interpretative elements in that sense:

The exemption provided for in no. 1 of article 9 of the VAT Code ("the provision of services effected in the exercise of the professions of doctor, dentist, midwife, nurse and other paramedical professions") depends on the definition made in each Member State, but is conditioned to a common teleology;

The rationale for such exemption, by requirement of the Directive on the common VAT system (Directive 2006/112/EC of the Council, of 28 November 2006, published in Official Journal no. L 347, of 11 December 2006), is to ensure that the benefits of medical or paramedical assistance – in which, at least since the entry into force of Law no. 45/2003, of 22 August, are included those provided by Non-Conventional Therapies (being acupuncture expressly included in such NCT: no. 2 of its article 3) – do not become inaccessible due to the increase in costs resulting from taxation;

As article 3, no. 1 of Law no. 45/2003 determines that "non-conventional therapies are those that are based on a philosophical basis different from conventional medicine and apply specific diagnostic and therapeutic processes", and this is exactly what happens in acupuncture (and is, furthermore, expressly integrated into the list of NCT by virtue of article 2 of Law no. 71/2013), there is no doubt that acupuncture is an NCT. As article 13, no. 1, of Law no. 45/2003 considers that "citizens have the right to freely choose the therapies they wish", there is a total parallelism between acupuncture activities and paramedical activities. Thus, the entire legal framework of NCT (and acupuncture) implies equal treatment with other paramedical activities, which was recognized fiscally with article 8-A, introduced by Law no. 1/2017, of 16 January, with an interpretative nature, in Law no. 71/2013;

The AT itself would have had oscillations of understanding: in an Official Letter dated 17.12.2004 it refused the exemption for acupuncture activity, but admitted accepting it upon the regulation of Law no. 45/2003; later, in the "Official Letter of the VAT Services, dated 14.01.2005, informed that the act of health of acupuncture, when carried out by a licensed physician, by a psychologist or by a physiotherapist, could indeed benefit from VAT exemption"; in 2007, "the Deputy Director-General of Taxes, directed an email to the DGCI-Finance Services clarifying that only those taxpayers who exercised the activities and held the professions listed in Decree-Law no. 261/93 and Decree-Law no. 320/99, of 1 August, as they met conditions for its exercise and were holders of adequate professional qualification", but about a month later, "the Director-General of Taxes directed new Information to all Directors of Finance, invoking the imminence of regulation of Law no. 45/2003 to recommend suspension of the reevaluation of the classification for VAT purposes of NCT professionals, stopping all ongoing inspection procedures and the issuance of VAT assessment acts on acupuncture activity."; in 2008, Information no. 1764 (...) admitted that "regarding the question of classification of non-conventional therapeutic activities, it is noted that it has been the understanding of these Services that after the regulation of Law no. 45/2003 by the competent entities and with a view to equal treatment of conventional medicine professionals, it will indeed be admissible that there cease to exist justifiable reasons for the exclusion of these activities from the exemption provided for in article 9 of the VAT Code.", adding that "by analyzing Law no. 45/2003 of 22 August and Decree-Laws no. 261/93 of 24 July and no. 320/99 of 11 August (diplomas to be observed for the exercise of paramedical activities) similarities can be found, both in content and in objective" and that "the choice of the type of therapy desired (conventional or non-conventional) is a right that belongs to the individual, it would not be repugnant to the idea that the exercise of non-conventional therapeutic activities could benefit from the exemption provided for in art. 9 of the VAT Code."; in 2015, however, Official Letter-Circular no. 30174 established that "notwithstanding the bachelor's degree conferred and the recognition that professionals who develop these professions do so within the scope of health activities in a non-conventional aspect, the legal framework does not confer on them an equivalence to paramedical professions, whose notion and enumeration, defined in Decree-Laws no. 261/93, of 24 July and 320/99, of 11 August, remain unchanged" ;

Such understanding would be even more incomprehensible given that adopted for psychologists in Binding Information no. 2933, of 02.01.2012, which invoked the Judgment of the Court of Justice of the European Community of 14 September 2000, handed down in Case 384/98, and given the amendment of article 8-A to Law no. 71/2013;

Having all this in mind, the recommendation made to the Government in 2016, by the Competition Authority (AdC) evidences the competition distortions (and the violation of the fiscal neutrality principle) that the AT's understanding introduces in the market of acupuncture therapy service provision (by exempting doctors or paramedics who practice it, but not professionals who do not have such other training), acknowledging "being undisputed that, given the current legal framework for access and exercise of NCT, these activities constitute "healthcare assistance services" as is indeed recognized by the Tax and Customs Authority itself";

As the AT persisted in its position, the Parliament approved Resolution no. 217/2016, derived from an initiative of the CDS-PP parliamentary group that mentioned the recommendation made by the AdC, to formalize the inclusion of NCT providers in the "other paramedical professions", for purposes of the exemption granted under subparagraph 1) of article 9 of the VAT Code";

Finally, Law no. 1/2017, of 16 January, came, with an interpretative character, to enshrine the understanding that "Professionals who dedicate themselves to the exercise of non-conventional therapies referred to in article 2 are subject to the same value added tax regime as paramedical professions.", introducing such norm in the diploma regulating Law no. 45/2003, that is, in necessary harmony with the options already contained therein;

Which has also been already recognized by the courts, namely:

in the context of Impugn Case no. 734/14.2 BELLE, which took place before the 2nd Organic Unit of the Administrative and Fiscal Court of Loulé;

in the Decision of CAAD issued in Case no. 111/2017-T;

As for the decision of the gracious objection, it imputes to it, besides the same interpretative deficiencies, the vice of ex post facto reasoning, to the extent that it introduces an additional requirement for the recognition of VAT exemption in NCT. Thus, "Law no. 71/2013 – which regulates the professional exercise of activities related to non-conventional therapies – limited itself to developing a guiding principle that already existed in the law that aimed to frame such activities, from which resulted the equivalence of the tax regime for the provision of services of conventional and non-conventional therapies" ;

Such requirement that, in any case, it understands does not apply to the years involved in the assessments challenged in these proceedings, to the extent that the mechanisms that the State had provided to credential the beneficiaries of the exemption were not available – due to State inertia, considering that "in no case can it be accepted that the AT can condition the recognition of VAT exemption for acupuncture activities to the delivery of professional credentials when, at the date of the facts – that is, in 2013, 2014 and 2015 – such professionals did not even yet have the possibility of having such professional certification." ;

It further argues that the interpretation advocated by the Respondent, exempting doctors or other health professionals considered paramedical, but not applicants of NCT who do not have such other training, suffers from violation of the principle of equality and, to the extent that its strict and literal application produces effects that lead to unequal treatment of materially equal or similar situations, suffers from violation of the principle of substantive justice;

Finally, in addition to having as a consequence the illegality of the compensatory interest assessments,

it imputes to them lack of mention (and reasoning) in the RIT, which would also make them autonomously illegal, whatever the decision on the VAT assessments on which they depended;

as well as it imputes to them non-existent reasoning, to the extent that no imputation of fault was made to the Applicant – and much less was proven – as would be necessary for such interest to be demanded.

To the extent that the AT determined seizures of the bank account balance and of securities pending the decision on the request for exemption from guarantee, it further requests that compensation be fixed for the provision of wrongful guarantee, under the terms of article 53 of the LGT, "for the amount corresponding to the constraints that such seizures had on the Applicant's activity";

The Respondent replied, also invoking, in summary, the following:

The arguments of the Applicant that are based on normative sources – and not on opinions, recommendations or preparatory work, which do not bind the interpreter and the applier of the law – are contradictory and inaccurate:

First of all, as "only from the entry into force of Law no. 71/2013 did acupuncture, legally, become integrated into the concept of NCT in a regulated manner", only from the date of entry into force of that law could it benefit from VAT exemption "(fulfilling other legal requirements, which is not the case here (...)) given the introduction of article 8-A into Law no. 71/2013 (introduced by Law no. 1/2017, of 16 January)";

Having that article 8-A an interpretative nature, by force of the provision in article 3 of Law no. 1/2017, it would be "indisputable that the effects of such exemption can only retroact to the date of entry into force of the interpreted law, but not to earlier moments";

Contrary to what is invoked by the Applicant, the interpretation of the law made by the AT was coherent over time, with reference to the internal instruction of the AT regarding the advantage of a "standstill" in inspection activities on the provision of NCT services being a mere management decision, since it is "natural that the AT does not exhaust its resources, naturally and admittedly limited, to inspect situations that may, shortly, be subject to legislative intervention, in the sense of relieving them of tax burdens" – which "did not come to pass in that moment…nor did it happen later in the expected terms.";

Despite the existence of jurisprudential decisions in a sense divergent from the understanding of the AT, "jurisprudence is not Law" ;

Moreover, the requirements introduced by Law no. 1/2017 already applied before (the reasons "invoked for not operating any VAT exemption for the Applicant are valid, whether for periods after October 2013, or for those prior to the same date, for reasons of equality") because "Law no. 45/2003, which has been in force since 23/08/2003" provided that "the practice of NCT will be credentialed and overseen by the Ministry of Health (article 6 of the aforementioned diploma), still adding the same Law, in the following article, that the Ministry of Education will define the conditions for training and certification of qualifications for the exercise of NCT", and stipulating the same diploma that "the practice of NCT can only be exercised by professionals with legally required qualifications and duly credentialed for its exercise"; the same as was required by Law no. 71/2013, which imposes "that the professional credential will have to be issued by the Central Administration of the Health System, IP (ACSS), which publicizes credentialed professionals on the Internet". Now, "The Applicant does not mention a single professional who meets the requirements for legal exercise of the profession, relying on deadlines that have already long passed, not indicating any recognition by the ACSS."

There is a relevant difference between the general classification of NCT in the exemption provided for in article 9 of the VAT Code and the subsumption of the situation in the present case to that norm; underlining this difference, the AT writes: "if the exemption of the acupuncture activity results from article 8-A of Law no. 71/2013, a diploma which requires that the performance of exempt NCT activities be dependent on the possession of a bachelor's degree in areas defined in that diploma (...), a situation which, we reiterate, does not occur in the case sub judice, further requiring the diploma to possess a professional credential issued by the ACSS, which also does not occur, nor do we see how the Applicant can sustain the request in Law";

The invocation, in the decision of the gracious objection, of a requirement not mentioned in the RIT stems from this having been introduced subsequently: the RIT is of 31 August 2016, while Law no. 1/2017, is of 16 January. Integrating, from that date the applicable legal framework, the AT argues that it could not fail to apply it;

Regarding compensatory interest the AT distinguishes the RIT and the assessment, considering that "with the interest indicated in the assessment, with reference to the legal provision that grants this right to the State (article 35 of the LGT), there is an express reference to the provision that bases the obligation to pay such interest", and argues that "the Applicant became aware of official letters informing that the activity it carried out was subject to VAT, requested the AT which responded that it would have to assess and deliver VAT", therefore "being the tax due (...) obviously compensatory interest will be due".

Regarding compensation for the provision of wrongful guarantee, it considers that, there being – as it argues there was not – "any error in the assessment of the tax", "no. 2 of article 53 of the LGT does not apply"; and "The guarantee not being maintained for a period exceeding three years, the situation does not fall under no. 1 of article 53 of the LGT", and, compensation for the seizures being "a matter of non-contractual civil liability", should be resolved in another forum, among other parties (the Applicant and the State, represented by the Public Prosecutor's Office).

II. PRELIMINARY HEARING

The arbitral tribunal was regularly constituted and the request for ruling is within the scope of its jurisdiction (subparagraph a) of no. 1 of articles 2 and 4 of RJAT and articles 1 and 2 of Ordinance no. 112-A/2011, of 22 March).

No dilatory exceptions were invoked, nor do they exist, that could prevent the tribunal from knowing the merits of the case.

The proceedings do not suffer from any nullities.

The parties have legal personality and capacity, are legitimate, and are regularly represented.

The cumulation of claims is provided for in no. 1 of article 3 of RJAT which – similarly to the provision in article 104 of the Code of Tax Procedure and Process (CPPT) – establishes that the cumulation of claims, even if relating to different acts, is admissible "when the merit of the claims depends essentially on the appreciation of the same circumstances of fact and on the interpretation and application of the same principles or rules of law".

This was the case, to the extent that the acts of VAT assessment, and the interest charged, have identical grounds, apply the same rules of Law and resulted from the same Tax Inspection.

As for the act dismissing gracious objection no. ...2017..., handed down on 31.08.2017 by the Deputy Director of Finance, in substitution regime – which was also included in the subject matter of the proceedings – it deals exactly with the same issues, although the reasoning adopted therein is not entirely coincident with that which justified the aforementioned assessment acts, as shall be better seen hereafter.

Being the indemnity request a consequence of the eventual merit of the Applicant's claim, all the legal requirements for cumulation of claims are also verified in relation to this.

Thus, everything considered, it is necessary to decide.

III. FACTUAL MATTERS

III.1. PROVEN FACTS

The Applicant is a limited partnership company with the business purpose of "Operating an acupuncture and treatment clinic, naturopathy, homeopathy and other non-conventional therapies, marketing of natural products, dietary products and related", to whose activity corresponds the CAE 86906 – Other human health activities, developing activities of acupuncture and tui ná;

Under Service Orders nos. OI2016..., OI2016..., OI2016..., and OI2016..., the Applicant's activity was subject to an external inspection procedure, which covered the periods of 2012, 2013, 2014 and 2015;

As a result, the AT proposed a change in the Applicant's tax classification for VAT assessment purposes, on the grounds that the services provided by it do not meet the requirements provided for the application of the exemption set out in article 9, no. 1, of the VAT Code;

That understanding led to corrections being proposed in VAT in the total amount of €1,735,187.36 (one million, seven hundred and thirty-five thousand, one hundred and eighty-seven euros and thirty-six cents), as appears from the following table:

The Applicant submitted its response in connection with prior hearing before the draft Tax Inspection Report (RIT);

Despite the grounds adduced therein, the Applicant was notified of the RIT, dated 31 August 2016, which maintained, in full, the corrections initially proposed by the AT;

In the RIT, based on documents provided by the Applicant, the activity of the latter is noted as being developed by service providers, of whom fifteen were provided processes, nominatively identified, "with diplomas/certificates of qualifications relating to academic training in "Higher Course of Acupuncture and Traditional Chinese Phytotherapy" or "Chengdu Degree in Chinese Medicine", certified by the Portuguese Association of Acupuncture and Associated Disciplines (APA-DA) and by the Portuguese Institute of Traditional Chinese Medicine (IPMTC) and by the APPA or by the Zhong Yi Da Xue University of Chinese Medicine, Ltd (UMC)";

Such courses are not officially recognized in Portugal, but four of such service providers also had qualifications in paramedical activities (Bachelor's in Physiotherapy; Specialization Course in Clinical Nutrition; Degree in Clinical Analysis and Public Health; Degree in Pharmaceutical Sciences).

Law no. 71/2013, of 2 September – which referred to a regulation for the definition of the rules for obtaining the required professional credential – determined that, among others, the activity of acupuncture was dependent on the possession of a bachelor's degree and the possession of a professional credential assigned by the Central Administration of the Health System, IP (ACSS);

The deadline for compliance with the obligation contained in the transitional provision provided for in article 19 of Law no. 71/2013 (recognition of professionals who on 2 October 2013 exercised activities of Non-Conventional Therapies – NCT) occurred 180 days after the date of entry into force of Ordinance no. 172-C/2015, of 5 June, that is, on 2 December 2015;

In light of the grounds adduced in the RIT, the AT fixed corrections for the Applicant in VAT in the total amount of € 1,735,187.36 (one million, seven hundred and thirty-five thousand, one hundred and eighty-seven euros and thirty-six cents) as better referred to in iv);

Subsequently, the Applicant was notified of the corresponding assessments of tax and interest which it contests in these proceedings;

The Applicant did not make the respective payment, having presented, under the terms and for the purposes of the provision in no. 4 of article 52 of the LGT and article 170 of the CPPT, a request for exemption from the provision of guarantee, which was ruled favorably by the Central South Administrative Court;

In parallel, the Applicant presented a Gracious Objection to the VAT assessment acts relating to the years 2012 to 2015;

On this, the AT issued a decision of non-acceptance;

On 22 November 2016 tax enforcement case no. ...2016... was instituted, to which the other tax enforcement cases were appended;

As a result thereof the AT issued a seizure in the amount of €1,944,276.75, with the Applicant's account balance at Bank B... being seized in the amount of € 12,214.33, as well as 1,433 registered securities (doc no. 13 attached with the Request);

Such seizures were lifted by order dated 16.02.2017 and notified through Official Letter no. ..., due to pending request for consideration of exemption from the provision of guarantee;

The Applicant presented gracious objection to the assessment acts and respective interest, relating to the years 2012 to 2015, on 14 March 2017;

On 14 July 2017 the Applicant was notified of the draft order dismissing the gracious objection presented;

On 6 September 2017 the Applicant was notified of the order dismissing the gracious objection;

Regarding the incidence of VAT, but being only in issue the year 2012, one of the Group companies of the Applicant that provides NCT services, C..., Ltd., obtained an arbitral decision of merit on 25 October 2017, on the grounds that "the Parliament intended that the authentic interpretation effected by Law no. 1/2017 would apply retroactively to the professional activity of exercise of non-conventional therapies to which Law no. 73/2013 relates, with the sense of applying the same value added tax regime to it that was applied to paramedical professions, at least from the entry into force of Law no. 45/2003, of 22 August.";

On 22 March 2017, two acupuncture service providers obtained from the Administrative and Fiscal Court of ... the recognition of VAT exemption for the years 2010, 2011 and 2012, "in accordance with art. 9 no. 1 of the VAT Code and art. 8-A of Law 1/2017";

The AT carried out an external inspection of company D..., Ltd., another of the Applicant Group's companies that provides NCT services, for the years 2013 to 2016, with assessment corrections being made only for the year 2013, having considered that VAT exemption for NCT services would apply to the remaining years, i.e., to the years after the entry into force of Law no. 71/2013, of 2 October 2013.

III.2. UNPROVEN FACTS

There are no other facts with relevance for assessment of the merits of the case that have not been proven.

III.3. SUBSTANTIATION OF FACTUAL MATTERS

The factuality proven was based on the documents attached to the proceedings by the Applicant, the administrative file attached by the Respondent, as well as the position adopted by the parties and freely assessed by the Tribunal.

In the case of fact (xxi), outside the present proceedings, the AT excused itself from "confirming what was alleged", but gave "as acquired that such has occurred" (article 57 of its Reply).

IV. LEGAL MATTERS

IV.1. QUESTIONS FOR DECISION

The central question to be decided consists of knowing whether the provision of acupuncture services effected by the Applicant, through service providers, should, or should not, be considered as exempt from VAT, under the terms of the provision in no. 1 of article 9 of the VAT Code (VAT Code) and article 8-A of Law no. 71/2013, added by Law no. 1/2017, of 16 January.

The Applicant argues, essentially, that the assessments challenged lack legal basis inasmuch as it benefits from the exemption provided for in article 9, no. 1, of the VAT Code, at least from Law no. 45/2003, of 22 August, whose article 2 includes acupuncture in non-conventional therapies, a solution that meets the rationale of the Directive on the common VAT system (Directive 2006/112/EC of the Council, of 28 November 2006, published in Official Journal no. L 347, of 11 December 2006), which is to ensure that the benefits of medical or paramedical assistance do not become inaccessible due to the increase in costs resulting from taxation.

According to the Applicant, as article 13, no. 1, of Law no. 45/2003 considers that "citizens have the right to freely choose the therapies they understand", there is a total parallelism between acupuncture activities and paramedical activities. Thus, the entire legal framework of NCT (and acupuncture) implies equal treatment with other paramedical activities, which was recognized fiscally with article 8-A, introduced by Law no. 1/2017, of 16 January, with an interpretative nature, in Law no. 71/2013.

The Respondent agrees with the delimitation of the question to be decided, but adds, in addition to acupuncture services, the "massage "tui ná" (...) as this is also a service provided by the Applicant without charging VAT".

On the other hand, contrary to the Applicant's position, the Respondent argues, in summary, that "if Law no. 1/2017 alters Law no. 71/2013, adding a norm that, in practice, exempts NCT identified in the 2013 diploma from VAT, and if the same Law no. 1/2017 states that such normative therein introduced has an interpretative nature (…), acupuncture (fulfilling with other legal requirements) would have been exempt from VAT since the entry into force of the diploma altered by norm of an interpretative nature" (article 11 of the Reply).

The Respondent adds (substantiating the dismissal of the gracious objection and in the Reply) that, furthermore, the practice of NCT can only be exercised by professionals with legally required qualifications and duly credentialed for that purpose, which does not occur in the case of the present proceedings.

The response to the questions raised requires that the scope of the legal exemption and its possible evolution over time be addressed first of all.

Let us see.

IV.2. WORDING OF THE APPLICABLE RULES

To better understand the subsequent argumentative course, the norms that may be relevant for framing the situation of the present proceedings are reproduced:

The following is the wording of the norm invoked to benefit from the exemption – no. 1 of article 9 of the VAT Code:

Exemptions in internal transactions

The following are exempt from tax:

The provision of services effected in the exercise of the professions of doctor, dentist, midwife, nurse and other paramedical professions;

(…)

The exercise of paramedical professions is regulated by Decree-Law no. 261/93, of 24 July, which determines in no. 3 of its article 1 that "The paramedical activities referred to in no. 1 are those listed in the annex to this diploma", which lists the following, providing for each a brief description: "1 - Clinical and public health analysis (...) 2 - Pathological anatomy, cytological and thanatological (...) 3 - Audiometry (...) 4 - Cardiopneumography (...) 5 - Dietetics (...) 6 - Pharmacy (...) 7 - Physiotherapy (...) 8 - Oral Hygiene (...) 9 - Nuclear Medicine (...) 10 - Neurophysiology (...) 11 - Orthoptics (...) 12 - Orthotics and Prosthetics (...) 13 - Dental Prosthetics (...) 14 - Radiology (...) 15 - Radiotherapy (...) 16 - Speech Therapy (...) 17 - Occupational Therapy (...) 18 - Environmental Health and Hygiene (environmental health)".

In turn, no. 1 of article 2 of Decree-Law no. 320/99, of 11 August ("Regulates the technical professions of diagnosis and therapeutics and creates the National Council of Professions of Diagnosis and Therapeutics as a support body to the Minister of Health") established the list of professions corresponding to those activities:

clinical and public health analysis technician;

pathological anatomy, cytology and thanatological technician;

audiology technician;

cardiopneumology technician;

dietitian;

pharmacy technician;

physiotherapist;

oral hygienist;

nuclear medicine technician;

neurophysiology technician;

orthoptist;

orthoprotésist;

dental prosthetics technician;

radiology technician;

radiotherapy technician;

speech therapist;

occupational therapist;

environmental health technician.

Only later, in 2003, were Non-Conventional Therapies (NCT) recognized, through the adoption of Law no. 45/2003, of 22 August ("Law on the basic framework of non-conventional therapies").

This diploma limited itself to establish the "framework of the activity and exercise of professionals who apply non-conventional therapies" (article 1), whose concept is defined in article 3.

The following is the wording of article 3:

Concepts

1 - Non-conventional therapies are those that are based on a philosophical basis different from conventional medicine and apply specific diagnostic and therapeutic processes.

2 - For purposes of application of this law, the following are recognized as non-conventional therapies: those practiced by acupuncture, homeopathy, osteopathy, naturopathy, phytotherapy and chiropractic.

The aforementioned diploma established, in this way, the guiding principles (article 4) and the general framework of NCT, as to the professional qualification and status, referring the remaining regulation to a diploma to be approved later. It expressly refers in article 7, under the heading "Training and credentialing of qualifications", that "The definition of the conditions for training and certification of qualifications for the exercise of non-conventional therapies is the responsibility of the Ministries of Education and Science and Higher Education". In turn, article 10, under the heading "On the exercise of the activity", states in its no. 1 that "The practice of non-conventional therapies can only be exercised, under the terms of this law, by professionals with legally required qualifications and duly credentialed for its exercise."

It so happens that only a decade later was Law no. 45/2003, of 22 August, regulated. The following is the wording of the norm of article 2 of Law no. 71/2013, of 2 September ("Regulates Law no. 45/2003, of 22 August, concerning the professional exercise of activities related to non-conventional therapies"):

Scope of application

This law applies to all professionals who dedicate themselves to the exercise of the following non-conventional therapies:

a) Acupuncture;

b) Phytotherapy;

c) Homeopathy;

d) Traditional Chinese medicine;

e) Naturopathy;

f) Osteopathy;

g) Chiropractic.

This diploma came to regulate, among other things, access to the profession (article 5, subjecting the exercise of the professions referred to in article 2 to holders of a professional credential (article 6) and reserving the use of professional titles to holders of the corresponding professional credential (article 7).

Finally, with an interpretative nature (article 3 of Law no. 1/2017, of 16 January) NCT professionals were equated to paramedics for purposes of VAT taxation.

The following is the wording of the norm of article 8-A of the aforementioned Law no. 71/2013, of 2 September, added by Law no. 1/2017:

VAT Regime

Professionals who dedicate themselves to the exercise of non-conventional therapies referred to in article 2 are subject to the same value added tax regime as paramedical professions.

IV.3. SCOPE OF THE EXEMPTION RULES

In the case sub judicio we are faced with two exemption rules: that of no. 1 of article 9 of the VAT Code, and that of article 8-A of Law no. 71/2013, of 2 September, added by Law no. 1/2017, of 16 January, both transcribed above.

The first exemption rule (that of no. 1 of article 9 of the VAT Code) delimits the exclusion of the application of VAT based on three elements: a material one ("provision of services"), another contextual one ("effected in the exercise") and another personal one ("of the professions of doctor, dentist, midwife, nurse and other paramedical professions").

The second exemption rule (that of article 8-A of Law no. 71/2013, introduced in 2017) merely extends to professionals who dedicate themselves to the exercise of non-conventional therapies the VAT exemption that was already previously provided for paramedical professions.

With regard to the scope of the legal exemption, three issues arise: i) as to the possibility of Non-Conventional Therapies (NCT) being considered included in the exemption of article 9 of the VAT Code; ii) as to the nature (interpretative or innovative) of the second exemption rule; and iii) as to the moment from which it can have effects.

i) Question of whether Non-Conventional Therapies (NCT) could be considered included in the exemption of article 9 of the VAT Code

Let us examine this problem on its own (i.e.: without considering the subsequent emergence of the second exemption rule).

The Applicant defends, being supported by the opinion attached to the proceedings, that the teleology of the exemption of article 9 of the VAT Code (ensuring the reduction of health care costs with safeguarding of neutrality and non-discrimination between providers of such care) is inherently applicable to NCT. The said opinion, prior to the intervention of the legislator in 2017, argues that "denying the granting of the exemption provided for in no. 1 of article 9 of the VAT Code to specialists in traditional Chinese medicine and acupuncturists in general on the basis solely of the legal delimitation of paramedical profession, constitutes an obvious and serious violation of European Union Law and, above all, an infringement of the constitutionally protected right to public health of Portuguese citizens, with no need for any additional legislation for that purpose."

Returning to the argumentative list presented by the Applicant, its position is no different: the rationale for the exemption imposed by Directive 2006/112/EC applies both to the professions listed in no. 1 of article 9 of the VAT Code and to those practiced by the technicians at its service, since these carry out activities recognized as NCT.

The Respondent contends that, as "only from the entry into force of Law no. 71/2013 did acupuncture, legally, become integrated into the concept of NCT in a regulated manner", the parallelism invoked by the Applicant only has support from that time on.

It is true that – contrary to the Respondent's position – one could trace that exemption option back to Law no. 45/2003, of 22 August, which, in no. 2 of its article 3, recognized "as non-conventional therapies those practiced by acupuncture, homeopathy, osteopathy, naturopathy, phytotherapy and chiropractic."

This approach, however, faces several obstacles.

First, it is debatable whether such recognition, made in 2003 (albeit only followed a decade later by regulatory legislation), was sufficient to consider that it had been established in the national legal order that such NCT should be recognized as medical or paramedical professions.

Second, it would still be necessary to overlook a minor, but important distinction for the purposes of the present case: only in Law no. 71/2013 was the provision of "traditional Chinese medicine" included, which was not considered as such in Law no. 45/2003 – which would mean that the tui ná massage would not be covered under the 2003 legislation.

Moreover, given that we are required to observe the most demanding principle of strict interpretation of VAT exemptions, developed by CJEU jurisprudence (which requires a criterion of literal interpretation (corroborated by the opinion attached to the proceedings, pp. 27 to 29), that is not what results from the provision in subparagraph c) of no. 1 of article 132 of Directive 2006/112/EC.

The provision stipulates that "Healthcare assistance services rendered in the course of the exercise of medical and paramedical professions, as defined by the Member State concerned".

It appears clear that – especially in a matter where the framework rules of the most harmonized of European taxes defer to the Member States the definition of medical and paramedical professions – it would have to be state legislation that would assume the options for its delimitation. It should be noted that what is at issue for purposes of the exemption rule is not the recognition of an activity as NCT, but rather its recognition as a medical or paramedical profession. Now, if that is so, one must conclude that such recognition – and by way of equivalence – only came about in 2017, with the addition of article 8-A to Law no. 71/2013.

Indeed, it seems clear that one thing is the scope of the exemption norm of article 9 of the VAT Code, quite another is the recognition of various activities as non-conventional therapies. The latter aspect was dealt with by both Law no. 45/2003 and Law no. 71/2013, which limited themselves to dealing with the recognition of activities capable of being subsumed in the concept of NCT. As to the former aspect, only in Law no. 1/2017 did the legislator take care to enshrine the exemption through the insertion of the interpretative rule in the place it considered most appropriate.

In sum, taking into account the specific requirements for interpretation of exemptions to the incidence of VAT, it does not seem reasonable to expect that, by itself alone, the rule of no. 1 of article 9 of the VAT Code – supplemented by Decree-Law no. 261/93, which enumerates the activities considered paramedical – could cover NCT. Neither today, nor in 2017, nor in 2013, nor in 2003.

Which means that the VAT exemption currently enjoyed by professionals who dedicate themselves to the exercise of non-conventional therapies has as its only basis the second exemption rule: that of article 8-A of Law no. 71/2013, which was added by Law no. 1/2017. Indeed, only there is it clearly stated that "Professionals who dedicate themselves to the exercise of non-conventional therapies referred to in article 2 are subject to the same value added tax regime as paramedical professions" (emphasis added).

ii) Question regarding the nature (interpretative or innovative) of the second exemption rule (that of article 8-A of Law no. 71/2013)

The retroactive temporal scope of the second exemption rule depends, prima facie, on the interpretative nature attributed to it by article 3 of Law no. 71/2013, but there has been general agreement in doctrine and in jurisprudence that such a declaration by the legislator should be understood as a clause of retroactivity where such a declaration does not correspond to the true nature of the rule.

Admitting that the difference may be relevant – and notwithstanding Applicant and Respondent being in agreement as to the interpretative nature of the rule of article 8-A of Law no. 71/2013 – the first question to be clarified is, therefore, this: is the exemption rule introduced in 2017 in Law no. 71/2013 an interpretative rule? Or is it rather a rule of extension of regime, endowed with the equivalent of a retroactivity clause?

In the decision handed down at CAAD in Case no. 111/2017-T it was considered "undisputed that the Parliament intended that the authentic interpretation effected by Law no. 1/2017 apply retroactively to the professional activity of exercise of non-conventional therapies to which Law no. 73/2013 relates", but with a dissenting vote, which, among other things, contended that

the very summary of the diploma proclaims that the "First amendment to Law no. 71/2013, of 2 September, which regulates Law no. 45/2003, of 22 August, concerning the professional exercise of activities related to non-conventional therapies, establishing the value added tax regime applicable to those activities" is made. Article 1 stipulates that "This law amends Law no. 71/2013, of 2 September, which regulates Law no. 45/2003, of 22 August, concerning the professional exercise of activities related to non-conventional therapies." In no place is there any intention to interpret the VAT Code, which is a code, with all the interpretative implications that codifications have.

On the other hand, the very wording of article 8-A introduced by the cited law is quite clear: "Professionals who dedicate themselves to the exercise of non-conventional therapies referred to in article 2 are subject to the same value added tax regime as paramedical professions". That is, paramedical professions have a regime (contained in the VAT Code) and professionals who dedicate themselves to the exercise of non-conventional therapies are subject to the same VAT regime. In other words: one did not seek to set a new meaning to the norms that comprise the VAT regime; one sought that the same regime that applies to paramedical professions would also apply to non-conventional therapies. One did not seek to alter the VAT regime; one sought that the VAT regime applicable to certain professions would come to cover others.

Although there are, therefore, contradictory indications as to the nature of the rule of article 8-A of Law no. 71/2013, preference must be given to the provision in article 3 of Law no. 1/2017 which, with normative force, considers it interpretative. Such rule, however, would always be necessary to obtain the retroactivity of the rule of no. 2 of the same diploma: were it not for it, and the amendment introduced to Law no. 71/2013 would only apply to the future.

In fact, introducing a new rule into an old diploma does not mean that rule has retroactive effects: this will only occur if it is given an interpretative nature or if it is endowed with a retroactivity clause. The rule of article 3 of Law no. 1/2017 served that purpose, and an intention coherent with that of the choice of the legislative seat of the amendment carried out must be attributed to the legislator (cf. what is written in the following section).

Another matter is whether it is a materially interpretative rule (corresponding to the generally recognized requirements of interpretative rules: an interpretative intent, clarifying a prior controversy, and adopting an understanding to which the interpreter could already, by itself, have arrived) or merely formal (as was written in Judgment no. 157/88 of the Constitutional Court: "as an authentic interpreter of its own law, the legislator is not even bound to make authentic interpretation 'materially': it can make authentic interpretation simply formally, conferring on norms previously edited by it a meaning different from any of those that doctrine and legal operators could fix.").

It has already been concluded above that the interpretation of no. 1 of article 9 of the VAT Code did not admit the solution that the legislator came to approve and consider interpretative in 2017 – i.e., that activities carried out by NCT professionals were exempt from VAT, so it must be recognized that the second requirement of materially interpretative rules (that they establish an understanding that interpreters could have, by themselves, reached) is not met.

In any case, even if understood differently, following the recent understanding of the Constitutional Court (established in Judgment no. 395/2017), the first requirement material of interpretative rules (existence of a prior controversy) cannot be considered met in the present case: "for there to be a jurisprudential controversy, it is not enough that there are divergent decisions on a certain question of interpretation; it is necessary that there exist a developed body of judicial (or arbitral) pronouncements within which opposing and unreconciled currents have been established within the jurisdictional order to which they relate."

Now, apart from the judicial decision in the case mentioned in the opinion attached to the proceedings, there are no known precedents for decisions on the application of the exemption regime of article 9 of the VAT Code to Non-Conventional Therapies. (The two decisions mentioned in the Proven Facts are posterior to the vigence of the 2017 interpretative law). This means, according to the new jurisprudence of the Constitutional Court, that there was no prior jurisdictional controversy – and without this there are no interpretative rules.

For one reason or another – or for both – it must be concluded that the said "interpretative rule" of article 8-A of Law no. 71/2013 (thus considered by the rule of article 3 of Law no. 1/2017) is only a merely formal interpretative rule – and, therefore, is equivalent to a retroactive rule.

It should be emphasized, however, that such circumstance in the present case does not prevent the rule introduced by Law no. 1/2017 from having effects equivalent to those of an interpretative law.

Indeed, with Baptista Machado, "the legislator can declare certain a disposition of the new law to be interpretative, even when that disposition is actually innovative (…) in such cases, it will be a disguise of the retroactivity of the new law". But the Author adds, "When there is no norm of higher hierarchy that prohibits retroactivity, such qualification of the legislator should be accepted for the purpose of giving such disposition an effect equivalent to that of an interpretative law, under the terms of art. 13. In fact, the legislator would, in the hypothesis, have the power to declare the new law retroactive and define the limits thereof" (Introduction to Law and Discourse of the Legitimizer, Almedina, Coimbra, 1994, p. 245).

Now, this is precisely what happens in the present case. Despite being an innovative rule, as we are faced with a situation of retroactivity favorable to taxpayers, we are outside the scope of the prohibition of article 103, no. 3, of the Constitution of the Republic. What that rule prohibits is the collection of taxes "which have a retroactive nature", not the retroactivity of exemption rules.

The legislator was, in this way, free to declare retroactivity and define its limits. However, it preferred to opt for that effect through the qualification of article 8-A added to Law no. 71/2013 as an interpretative rule.

In sum, being we faced with a favorable retroactive law, the problem of the distinction between formal and material interpretative laws dissolves itself, and the qualification by the legislator of the interpretative nature of article 8-A (added to Law no. 71/2013) made in article 3 of Law no. 1/2017 should be respected.

We are now in a position to address the third issue identified above.

iii) Question of knowing from what moment the rule of article 8-A of Law no. 71/2013 can have effects

The retroactivity of the exemption rule was expressly determined by the legislator when it chose the diploma in which to integrate it: Law no. 71/2013, of 2 September.

Note that there were at least five diplomas in which such a rule (or an equivalent one) could be integrated: the VAT Code (as a new article to article 9, or an amendment to the wording of its nos. 1 and 2 to cover NCT); Decree-Law no. 261/93 (as a new article on the inclusion of NCT in paramedical activities, or an amendment to the attached list to include them); Decree-Law no. 320/99 (as a new set of paramedical professions); Law no. 45/2003 (even with the same wording that was adopted to introduce article 8-A into Law no. 71/2013); and Law no. 71/2013.

If one takes into account the 2016 Recommendation of the Competition Authority (AdC), and if one thinks that it must have interfered in the formation of the will of the legislator in 2017, it also yields an additional argument for the legislative choice. It said that "although prior to the entry into force of Law no. 71/2013 it could be questioned whether the provision of healthcare assistance services in NCT offered a level of quality to users equivalent to that offered by doctors, that law and the regulation adopted in 2014 and 2015 (...) created a framework that appears complete with regard to the professional qualifications of persons qualified to exercise activities in the NCT sector."

Note that this exact passage from the June 2016 Recommendation of the AdC, which signals Law no. 71/2013 as a milestone in the evolution of NCT regulation, was contained in the Explanatory Memorandum of the "Draft Law no. 289/XIII/1st submitted by Deputies of the PSD, which gave rise to the legislative process that led to the adoption of that Law no. 1/2017" (we cite the decision handed down at CAAD in Case no. 111/2017-T, which transcribed that Explanatory Memorandum).

And one also cannot disregard, in this context, the exact terms of the AdC's Recommendation, which closed the 23 pages of substantiation: "this Authority accordingly recommends to the Minister of Finance and the Minister of Health that, within the scope of the constitutional competencies conferred on the Government, the regulation of the tax treatment to which acupuncture service provisions are subject be promoted, in order to ensure the neutrality of the taxation of these service provisions for VAT purposes, regardless of whether they are provided by doctors, within the competencies recognized by their respective Order, or by NCT professionals, in accordance with Law no. 71/2013, f