Opinion of the Advocate General — ECLI:EU:C:2015:55
Date: 2015-02-04
Language of the case: French
Subject matter: Taxation;Value added tax
Procedure: Reference for a preliminary ruling
Origin: France

Summary 37. In the light of the foregoing, I take the view that a service whereby an operator which is independent of second-hand motor-vehicle dealers provides, for a set period and in return for payment of a predetermined sum, a warranty covering the costs of repair of those motor vehicles in the event of mechanical breakdowns covered by that warranty, constitutes an insurance transaction within the meaning of Article 13(B)(a) of the Sixth Directive and is therefore exempt from VAT. 38. In this case it is common ground that Mapfre Warranty is an operator which is independent of second-hand motor-vehicle dealers and that the question referred also concerns that situation. However, the above conclusion must not be interpreted a contrario as meaning that transactions carried out by certain operators which are not independent of the manufacturers or sellers of particular products, in particular those operating as insurance providers, do not constitute insurance transactions. The differing nature of transactions under consideration in the main proceedings and transactions relating to the supply of second-hand motor vehicles 39. Finally, Mapfre Warranty submits that, even if the transactions which it carries out are to be regarded as insurance transactions, they should be subject to VAT since they are so indissocably linked with the transactions relating to the sale of second-hand motor vehicles covered by the warranty that they essentially form a single transaction which must be taxed uniformly. The referring court does not raise this issue directly in the question referred but it certainly has a bearing on the correct taxation of the transactions which form the subject-matter of the main proceedings and should therefore be considered. 40. According to the settled case-law of the Court, for VAT purposes every supply must normally be regarded as distinct and independent; in certain circumstances, however, several formally distinct services, which could be supplied separately and thus give rise in turn to taxation or exemption, must be considered to be a single transaction when they are not independent. Such is the case in particular where it would be artificial to split the services from an economic point of view or where ancillary services must be taxed in the same way as the principal service. That matter must be considered in the light of the facts of the specific case, that is to say, it is for the national courts to determine. However, it is for the Court of Justice to provide the national courts with all the guidance as to the interpretation of EU law which may be of assistance in adjudicating on the cases pending before them. (14) 41. As regards insurance transactions, the Court has ruled that every insurance transaction has, by its nature, a link with the item which it covers. None the less, such a connection is not sufficient in itself to determine whether or not there is a single complex transaction for VAT purposes. If any insurance transaction were subject to VAT because the services relating to the item which it covers were subject to VAT, the purpose of the exemption of insurance transactions would be called into question. (15) 42. In my view, it is sufficient in the present case to find that the warranty in question is an additional service in relation to the motor-vehicle supply transaction and has a distinct, self-contained, economic rationale. The purchaser of the motor vehicle can purchase it and use it without any breakdown warranty and can also conclude a warranty contract with an operator other than Mapfre Warranty, without having recourse to involvement of the motor-vehicle dealer. It is also significant that the warranty here under consideration is provided by an operator which is independent of the motor-vehicle dealer and therefore it cannot be regarded as a warranty provided by the dealer. Finally, Mapfre Warranty reserves the right, under certain circumstances, to withdraw from the warranty contract, without this in any way affecting the sales agreement in relation to the motor vehicle. In my view, these facts demonstrate unequivocally that a warranty of the kind at issue in the main proceedings is not indissociably linked to the motor-vehicle supply transaction and therefore does not have to be taxed in the same way as that supply. Conclusion 43. In the light of the foregoing, I propose that the Court reply as follows to the question referred by the Cour de cassation: A service whereby an operator which is independent of second-hand motor-vehicle dealers provides, for a set period and in return for payment of a predetermined sum, a warranty covering the costs of repairing those motor vehicles in the event of mechanical breakdowns covered by that warranty constitutes an insurance transaction within the meaning of Article 13(B)(a) of the Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, and is for that reason exempt from value added tax. 1 Original language: Polish. 2 OJ 1977 L 145, p. 1. 3 Mapfre Warranty uses the term ‘warranty’ (French: garantie) to describe the service which it provides and I will also refer to it as such in this Opinion. However, it should be noted that this means a warranty in a broad sense as covering all mechanisms for protecting against loss of property (see Cornu, G., Vocabulaire juridique, 8th edition, PUF, Paris, 2009, p. 436). A distinction has to be drawn between a warranty construed thus and a contractual guarantee of quality provided by a seller to a purchaser or a warranty against defects. See in this regard also points 33 to 35 of this Opinion. 4 See, in particular, Stichting Uitvoering Financiële Acties, 348/87, EU:C:1989:246, paragraph 11, and Abbey National, C‑169/04, EU:C:2006:289, paragraph 38 and the case-law cited. 5 Proposal for a directive amending Directive 2006/112/EC on the common system of value added tax, as regards the treatment of insurance and financial services (COM(2007) 747 final). Directive 2006/112 replaced the Sixth Directive. The exemption corresponding to Article 13(B)(a) of the Sixth Directive is contained in Article 135(1)(a) of Directive 2006/112. 6 OJ 1973 L 228, p. 3. 7 In its judgment in CPP, C‑349/96, EU:C:1999:93, at paragraph 18, the Court, it is true, held that there is no reason for the interpretation of the term ‘insurance’ to differ according to whether it appears in the Sixth Directive or in Directive 73/239. However, that case concerned solely the scope of that term, that is to say, whether it covers, in addition to payments for indemnity, other forms of assistance for those sustaining loss, and not the definition thereof. In my view, the interpretation of the term ‘insurance transactions’, for the purpose of applying the provisions on VAT, need not necessarily be determined by the provisions governing the conduct of insurance activity since the purposes of those rules differ. 8 See the Opinion of Advocate General Fennelly in CPP, C‑349/96, EU:C:1998:281, point 26. 9 C‑224/11, EU:C:2013:15. 10 BGŻ Leasing, C‑224/11, EU:C:2013:15, paragraphs 58 and 59 and the case-law cited. 11 BGŻ Leasing, C‑224/11, EU:C:2013:15, paragraphs 62 and 63. 12 At this juncture I would like to point out that clearly a situation is theoretically possible in which a third party assumes, for a fixed amount, the obligations of the motor-vehicle dealer which arise from statute law or otherwise (for example, under a contract). Such transactions would have to be regarded as insurance transactions only if the seller of the motor vehicle, and not the purchaser, were insured. However, the transactions which form the subject-matter of the main proceedings do not constitute such transactions and the question referred for a preliminary ruling was not drawn up in that context. 13 See also, in this regard, points 39 to 42 of this Opinion. 14 BGŻ Leasing, C‑224/11, EU:C:2013:15, paragraphs 29 to 33 and the case-law cited. 15 BGŻ Leasing, C‑224/11, EU:C:2013:15, paragraph 36.