Skatteudvalget 2016-17
SAU Alm.del Bilag 38
Offentligt
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Ref. Ares(2016)5994161 - 18/10/2016
EUROPEAN COMMISSION
DIRECTORATE-GENERAL
TAXATION AND CUSTOMS UNION
Indirect Taxation and Tax administration
Value added tax
Brussels, 18/10/2016
IB/cle taxud.c.1(2016)6528007
Jeanette Rose Hansen
Danish Ministry of Taxation
Nicolai Eigtveds Gade 28
DK 1402 – Copenhagen
Email:
[email protected]
Subject:
Applicability of VAT exemptions for health services on fertility
treatments
Your letter sent by email of 19 September 2016 (Ref. no. 16-0831147)
Ref:
Dear Ms Hansen,
We thank you for the above mentioned letter by which you ask for the Commission's
assessment of the extent to which fertility treatments are covered by the VAT exemption
for medical services.
Our preliminary view
on the issues raised by you is as follows:
Fertility treatments could be covered by the VAT exemptions pursuant to
Articles 132(1)(b) and (c) of the VAT Directive according to which Member States shall
exempt hospital and/or medical care from VAT, dependent on the further requirements
stipulated in the said provisions.
1.
The interpretation of exemptions in the VAT Directive in general
According to the case-law of the Court of Justice of the European Union (CJEU) the
exemptions in Article 132 of the VAT Directive are independent concepts of EU law
whose purpose is to avoid divergences in the application of the VAT system from one
Member State to another
1
. The CJEU has consistently held that the exemptions are to be
interpreted strictly since they constitute exceptions to the general principle that VAT is to
be levied on all services supplied for consideration by a taxable person
2
. Nevertheless,
the interpretation must be consistent with the objectives pursued by those exemptions and
comply with the requirements of the principle of fiscal neutrality inherent in the common
system of VAT. Thus, the requirement of strict interpretation does not mean that the
exemptions should be construed in such a way as to deprive the exemptions of their
intended effect
3
.
1
2
3
See,
inter alia,
case C-349/96,
CPP,
paragraph 15.
See,
inter alia,
case C-2/95,
SDC,
paragraph 20, and case C-141/00,
Kügler,
paragraph 28.
See,
inter alia,
case C-86/09,
Future Health Technologies,
paragraph 30.
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
 SAU, Alm.del - 2016-17 - Bilag 38: Orientering vedr. brev fra EU-Kommissionen om moms på fertilitetsbehandling, fra skatteministeren
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2.
The objective of the exemptions pursuant to Articles 132(1)(b) and (c) and the
scope of the term 'medical care'
The objective of the exemptions in Article 132(1)(b) and (c) is to reduce the cost of
medical care and to make that care more accessible to individuals
4
. The concept of
'hospital and medical care' in Article 132(1)(b) and of 'medical care' according to
Article 132(1)(c) of the VAT Directive cover services that are intended to diagnose, treat
or cure diseases or health disorders or to protect, maintain or restore human health
5
. The
therapeutic purpose of the medical care should not necessarily be interpreted narrowly.
The CJEU has in that regard held that it is consistent with the aim of reducing healthcare
costs to include examinations or preventive medical treatment even when it is clear that
the person concerned is not suffering from any disease or health disorder
6
.
3.
Fertility treatment and medical care
On the basis of the definition mentioned before fertility treatments are covered by the
VAT exemptions in question if, for instance, they are intended to treat or cure health
disorders. This can be answered in the affirmative if the fertility treatment is intended to
overcome an organic infertility/reduced fertility with the therapeutic aim of bringing
about a wanted pregnancy. An organic infertility/reduced fertility would qualify as a
health disorder.
In order for an organic infertility/reduced fertility to qualify as health disorder it is not
necessarily needed to meet the WHO criteria as mentioned in your letter. The
determination of whether or not there is an infertility/reduced fertility for which a fertility
treatment is indicated is a medical assessment which must be finally based on findings of
a medical nature made by a person qualified for that purpose.
7
Thus, crucial is the
medical diagnosis of a medical practitioner.
4.
Causality
You have, furthermore, raised the question of whether the fertility treatment can be
covered by the relevant VAT exemptions if only the 'healthy' partner in a relationship is
treated whereas the partner whose infertility/reduced fertility have caused the treatment
to be necessary is not.
Decisive is that there is a causal connection according to which the treatment is carried
out in order to overcome infertility/reduced fertility so as to enable a wanted pregnancy.
According to our preliminary assessment it does not follow from the case law of the
CJEU that the VAT exemption can only be granted if there is a particularly narrow causal
relationship. The CJEU has ruled, for instance, that the removal of joint cartilage cells
from cartilage material taken from a human being and the subsequent multiplication of
those cells for reimplantation for therapeutic purposes can constitute ‘provision of
medical care’ even if the multiplied cells are not reimplanted into the patient from whom
they were originally removed but into another patient.
8
Furthermore, it must be recalled
that according to the CJEU case law mentioned above under point 2 the therapeutic aim
of 'medical care' should not necessarily be interpreted narrowly.
4
5
6
7
8
Case C-45/01,
Dornier,
paragraph 43, and
Kügler,
paragraph 29.
Case C-91/12,
PFC,
paragraph 28, and case C-106/05,
L.u.P,
paragraph 27.
Case C-212/01,
Unterpertinger,
paragraph 40.
See for instance case C-91/12,
PFC Clinic AB,
paragraph 35, as regards the differentiation between
medically indicated and cosmetic procedures in the context of plastic surgery
Case C-156/09,
Verigen Transplantation Service International AG,
paragraph 29
2/3
 SAU, Alm.del - 2016-17 - Bilag 38: Orientering vedr. brev fra EU-Kommissionen om moms på fertilitetsbehandling, fra skatteministeren
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Thus, we think that – dependent on the facts of the individual case – there can be a
sufficient link between fertility treatment and a health disorder even if the
infertility/reduced fertility is tried to overcome by treating the 'healthy' partner. In such a
case the treatment is carried out because one of the partners who want to have a child
together suffers from infertility/reduced fertility. The unfulfilled wish for a child of the
couple is the result of this health disorder/disease. This negative consequence can be
alleviated by the fertility treatment of one of the partners.
5. Treatment of Singles and homosexual couples
On the basis of our preliminary assessment, we have doubts whether a fertility treatment
is covered by one of the relevant VAT exemptions if the treatment is performed on single
women or women living in a homosexual relationship, where the woman receiving the
treatment has no indication of a disease or health disorder.
The CJEU has clarified that medical services effected for a purpose other than that of
protecting, including maintaining or restoring, human health may not benefit from the
exemptions under Article 132(1)(b) and (c).
9
The fertility treatment of a single woman or
a woman in a homosexual relationship would not be connected to a disease/health
disorder or to the protection of human health (preventive measures) within this meaning.
A causal connection in this regard would be missing. On the other hand, the CJEU has
clarified – as said before – that the therapeutic purpose of the medical care should not
necessarily be interpreted narrowly. However, we have doubts whether the therapeutic
purpose of enabling a pregnancy without any connection to a disease/health disorder or
the protection of health is sufficient for treatment to be covered by the VAT exemptions
in question. The requirement of strict interpretation (see above point 1) could speak
against this.
Clarity does not derive from the rules on equality and human rights (referred to in your
letter). Of course, there should be no discrimination of single women or homosexual
couples. However, a different treatment would not follow from a person being a woman
or a homosexual but from the fact that the treatment would not be connected to a
disease/health disorder or to the protection of human health.
In case you so wish, the issue could be raised at a next VAT Committee meeting so that
allow for a formal consultation of all Member States to be organised on this issue. We
think that this could be helpful given the uncertainties expressed before and the fact that
Denmark – as mentioned in your letter – has been informed that there is an uneven
practice among Member States.
I would lastly like to stress that the comments before only reflect the view of DG
TAXUD's services and that our comments have been based exclusively on the facts
provided by you in your letter.
I hope that these comments are helpful. We are available for further discussions.
Yours sincerely,
e-signed
Donato Raponi
Head of Unit
9
Case C-212/01,
Margarete Unterpertinger,
paragraph 41
3/3
Electronically signed on 18/10/2016 15:57 (UTC+02) in accordance with article 4.2 (Validity of electronic documents) of Commission Decision 2004/563