VATupdate

Flashback on ECJ Cases – C-91/12 (PFC Clinic) – Aesthetic operations and aesthetic treatments exempt from VAT under certain conditions

On March 21, 2013, the ECJ issued its decision in the case C-91/12 (PFC Clinic).

Context: Directive 2006/112/EC — Exemptions — Article 132(1)(b) and (c) — Hospital and medical care and closely related activities — Provision of medical care in the exercise of the medical and paramedical professions — Services consisting in the performance of plastic surgery and cosmetic treatments — Interventions of a purely cosmetic nature based solely on the patient’s wishes


Article in the EU VAT Directive

Articles 131, 132(1)(b), 132(1)(c), 133, 134 of the EU VAT Directive 2006/112/EC

Article 131 (General Provisions)
The exemptions provided for in Chapters 2 to 9 shall apply without prejudice to other Community provisions and in accordance with conditions which the Member States shall lay down for the purposes of ensuring the correct and straightforward application of those exemptions and of preventing any possible evasion, avoidance or abuse.

Article 132 (Exemptions for Certain Activities in the Public Interest)
1. Member States shall exempt the following transactions:
(a) the supply by the public postal services of services other than passenger transport and telecommunications services, and the supply of goods incidental thereto;
(b) hospital and medical care and closely related activities undertaken by bodies governed by public law or, under social conditions comparable with those
applicable to bodies governed by public law, by hospitals, centres for medical treatment or diagnosis and other duly recognised establishments of a similar
nature;
(c) the provision of medical care in the exercise of the medical and paramedical professions as defined by the Member State concerned;

Article 133
Member States may make the granting to bodies other than those governed by public law of each exemption provided for in points (b), (g), (h), (i), (l), (m) and (n) of Article 132(1) subject in each individual case to one or more of the following conditions:
(a) the bodies in question must not systematically aim to make a profit, and any surpluses nevertheless arising must not be distributed, but must be assigned to the continuance or improvement of the services supplied;
(b) those bodies must be managed and administered on an essentially voluntary basis by persons who have no direct or indirect interest, either themselves or through intermediaries, in the results of the activities concerned;
(c) those bodies must charge prices which are approved by the public authorities or which do not exceed such approved prices or, in respect of those services not subject to approval, prices lower than those charged for similar services by commercial enterprises subject to VAT;
(d) the exemptions must not be likely to cause distortion of competition to the disadvantage of commercial enterprises subject to VAT.
Member States which, pursuant to Annex E of Directive 77/388/EEC, on 1 January 1989 applied VAT to the transactions referred to in Article 132(1)(m) and (n) may also apply the conditions provided for in point (d) of the first paragraph of this Article when the said supply of goods or services by bodies governed by public law is granted exemption.

Article 134
The supply of goods or services shall not be granted exemption, as provided for in points (b), (g), (h), (i), (l), (m) and (n) of Article 132(1), in the following cases:
(a) where the supply is not essential to the transactions exempted;
(b) where the basic purpose of the supply is to obtain additional income for the body in question through transactions which are in direct competition with those of commercial enterprises subject to VAT


Facts

  • PFC offers medical services in the field of plastic surgery and cosmetic treatments. At the material time, it provided services involving both cosmetic and reconstructive plastic surgery and also some skincare services.
  • PFC carries out procedures such as breast augmentation and reduction, breast lifts, abdominoplasty, liposuction, face lifts, brow lifts, eye, ear and nose operations and other plastic surgery. That company also offers treatments such as permanent hair removal and skin rejuventation by pulsed light, anti-cellulite treatments and botox and restylane injections.
  • PFC claimed the refund of input tax for the period corresponding to May 2007. In response to that claim, the Skatteverket refused both the refund and the deduction of that tax. According to the Skatteverket, VAT could not be refunded in respect of exempt transactions nor could a deduction of VAT be granted since cosmetic and reconstructive surgery constitute medical care exempt from taxation.
  • PFC appealed against the decision of the Skatteverket before the länsrätten i Stockholms län (County Administrative Court, Stockholm). The latter upheld the appeal, holding that the services offered by that company in respect of plastic surgery and cosmetic treatments did not constitute medical care.
  • The Skatteverket appealed against the judgment of the länsrätten i Stockholms län before the Kammarrätten i Stockholm (Administrative Court of Appeal, Stockholm). That court partially upheld the appeal and ruled that surgery and treatments which are reconstructive or which are carried out for psychological reasons are exempt from taxation if they are carried out by persons specially licensed to practise as medical professionals.
  • The Skatteverket appealed before the Högsta förvaltningsdomstolen (Supreme Administrative Court), arguing that the services supplied by PFC as regards both cosmetic and reconstructive surgery and treatments constitute medical care within the meaning of Chapter 3(4) of the ML and that, accordingly, PFC was not entitled to deduct input tax in respect of acquisitions made as part of its activity.
  • According to the order for reference, the purpose of the interventions carried out is, in certain cases, to treat patients who, as a result of an illness, injury or a congenital physical impairment, are in need of plastic surgery. In other cases, the interventions carried out are more as a result solely of the patient’s wishes to alter or improve his physical appearance. Irrespective of their purpose, and from a medical point of view, the various interventions are, according to the referring court, comparable services and can be carried out by the same personnel.
  • The Högsta förvaltningsdomstolen is unsure as to the manner in which the expressions ‘medical care’ and ‘the provision of medical care’ are to be applied in the context of medical services consisting in surgery and various treatments of the kind at issue in the main proceedings. That court asks in particular whether those expressions must be understood as including any type of plastic surgery or other cosmetic treatments carried out by doctors or other authorised healthcare professionals, or whether the underlying purpose of the acts is question is decisive for that purpose.

Questions

(1)      Is Article 132(1)(b) and (c) of the VAT Directive to be interpreted as meaning that the stated exemption from taxation covers services such as those at issue in the present case and which consist of:

–        plastic surgery,

–        cosmetic treatments?

(2)      Does it affect that assessment if the surgery or treatments are carried out with the purpose of preventing or treating illnesses, physical impairments or injuries?

(3)      If due account is to be taken of the purpose, can the patient’s understanding of the purpose of the intervention be taken into consideration?

(4)      Is it of any importance to the assessment whether the intervention is carried out by licensed medical professionals, or that such professionals decide on its purpose?


AG Opinion

None


Decision

Article 132(1)(b) and (c) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as meaning:

– supplies of services such as those at issue in the main proceedings, consisting in plastic surgery and other cosmetic treatments, fall within the concepts of ‘medical care’ and ‘the provision of medical care’ within the meaning of Article 132(1)(b) and (c) where those services are intended to diagnose, treat or cure diseases or health disorders or to protect, maintain or restore human health;

– the subjective understanding that the person who undergoes plastic surgery or a cosmetic treatment has of it are not in themselves decisive in order to determine whether that intervention has a therapeutic purpose;

– the fact that services such as those at issue in the main proceedings are supplied or undertaken by a licensed member of the medical profession or that the purpose of such services is determined by such a professional may influence the assessment of whether interventions such as those at issue in the main proceedings fall within the concept of ‘medical care’ or ‘the provision of medical care’ within the meaning of Article 132(1)(b) and (c) of Directive 2006/112 respectively;

– in order to determine whether supplies of services such as those at issue in the main proceedings are exempt from VAT pursuant to Article 132(1)(b) or (c) of Directive 2006/112 all the requirements laid down in subparagraphs 1(b) or (c) thereof must be taken into account as well as the other relevant provisions in Title IX, Chapters 1 and 2, of that directive such as, as far as concerns Article 132(1)(b), Articles 131, 133 and 134 thereof.


Summary

The ECJ has ruled that aesthetic operations and aesthetic treatments are exempt from VAT under certain conditions. The exemption applies when the purpose of the services is the diagnosis, treatment or cure of diseases or health problems of persons.


Source:


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