CJEU: cosmetic surgery not automatically subject to VAT
Publication date 26 March 2013
On March 21, 2013, the Court of Justice of the European Union (CJEU) concluded in the PFC Clinic case (C-91/12) that purely cosmetic operations which serve no therapeutic purpose whatsoever are subject to VAT. According to the judgment rendered, however, this will not usually be the case. For one thing, whether an operation should be qualified as purely cosmetic or not is not determined on the basis of the patient's (subjective) opinion, but on the evaluation of the surgeon involved. In addition, the Court observes that the concept of "therapeutic purpose" should not be strictly interpreted and that there may be an underlying psychological reason for health problems.
The judgment is in line with the Dutch policy of the Ministry of Finance for cosmetic surgery, as formulated in the Decree of February 24, 2013, no. BLKB/2013/298M:
"Cosmetic surgery is part of human medical care if the main aim of the treatment is the protection, including maintenance or restoration, of human health. This means that cosmetic surgery solely intended to improve someone's appearance cannot be regarded as medical care. VAT is only levied in these obvious cases. Health professionals who perform cosmetic surgery must make a distinction in their VAT accounts between therapeutic and non-therapeutic operations. The Dutch Tax and Customs Administration can only determine to a limited extent whether the professional practitioner correctly applies the exemption for cosmetic operations. The tax inspector cannot make a substantive judgment in the medical field and may not, in principle, request access to the medical files."