Sundheds- og Ældreudvalget 2016-17
SUU Alm.del
Offentligt
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European Commission
Directorate-General
Taxation and Customs Union
Indirect Taxation and Tax administration, VAT
Att. Donato Raponi
Klik og vælg dato
Ref.no. 16-1785799
Ministry of Taxation
Nicolai Eigtveds Gade 28
DK 1402 – København K
Tel. +45 33 92 33 92
Question concerning the application of EU VAT provision
Dear Mr. Raponi,
With reference to the correspondence between the Danish Ministry of Taxation and the
Commission (exchange of letters is enclosed for information purposes) the Ministry glad-
ly accepts the Commissions offer to raise the issue under the auspices of the VAT Com-
mittee.
The Danish Ministry of Taxation is in general of the opinion that the conditions for the
VAT exemptions of medical services as developed in Danish case law have resulted in an
arbitrary practice by which fertility treatment can or can not be exempt from VAT. It is
of our greatest interest to consider the possibility to implement changes to the interpreta-
tion formed by Danish case law in order to make fertility treatment VAT-exempt as a
general measure.
The Danish Ministry of Taxation therefore asks for an assessment of to what extent the
scope of the exemption of medical services in Article 132 (1) (b) and (c) of Council Di-
rective 2006/112/EC — the EU’s common system of value added tax (VAT) covers
assisted reproduction. In particular the following question should be raised:
Is fertility treatment performed on a single woman or women living in a homosexual relationship, where
the woman receiving the treatment has no indication of a disease or health irregularity covered by the
VAT exemption?
Opinion of the Danish Ministry of Taxation
Pursuant to Danish case law, assisted reproduction is currently exempted as a health ser-
vice if the woman receiving the treatment has an indication of reduced fertility. The
treatment must accordingly refer to a medical assessment showing that the woman receiv-
ing the treatment has in fact an indication of reduced fertility. Since the VAT exemption
for medical services is conditional on the existence of an indicator of infertility related to
the person receiving the treatment (i.e. the woman), the treatment of heterosexual cou-
ples, where it is found that the man is the reason for the need of assisted reproduction, is
not covered by the VAT exemption.
The Commission has informed The Danish Ministry of Taxation that they are of the
opinion 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
solved 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 disor-
Mail [email protected]
www.skm.dk
 SUU, Alm.del - 2016-17 - Endeligt svar på spørgsmål 182: Spm. om ministeren vil sikre, at udvalget får mulighed for at se det materiale, som ministeriet sender til EU’s momskomite i forbindelse med at regeringen arbejder for at sætte muligheden for at momsfritage enlige kvinders og lesbiske pars fertilitetsbehandling på dagsordenen i EU’s momskomite, til skatteministeren
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der/disease. This negative consequence can be alleviated by the fertility treatment of one
of the partners.
The Danish Ministry of Taxation agrees with the assessment given by the Commission.
Based on the communication from the Commission the Danish practice concerning the
exemption for medical care will be amended to also cover treatment of reduced fertility in
the case where only one of the partners in a relationship suffers from infertility/reduced
fertility.
I relation to fertility treatments performed on single women or women living in a homo-
sexual relationship, where the woman receiving the treatment has no indications of a
disease or a health irregularity, it is unclear whether or not the treatment is covered by the
VAT exemption.
As mentioned by the Commission the ECJ, 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). The fertility treat-
ment of a single woman or a woman in a homosexual relationship would not be connect-
ed 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, un-
like the case of a heterosexual couple. On the other hand, the ECJ has clarified that the
therapeutic purpose of the medical care should not necessarily be interpreted narrowly.
However, the Commission has 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 could speak against this.
The Danish Ministry of Taxation is of the opinion that fertility treatment should be ex-
empt from VAT as a general measure. We agree with the Commission, that the aim of the
exemption is connected to a person being treated for a disease/health disorder and it is
not decisive whether the treatment is performed on a man, a woman, a heterosexual or a
homosexual couple. The Danish Ministry of Taxation is of the opinion that everyone
should have access to fertility treatment exempt from VAT. This position may also be
considered to be consistent with rules on equality and human rights. Given the uncertain-
ty related to this question we would appreciate if the issue could be raised in the VAT
Committee.
Yours sincerely
Jeanette Rose Hansen
Side 2 af 2