Opinion of the Advocate General — ECLI:EU:C:2009:300
Date: 2009-05-13
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Taxation;Value added tax
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the Judgment 1. Tax provisions – Harmonisation of laws – Turnover taxes – Common system of value added tax – Supply of services – Definition (Council Directive 77/388, Art. 6) 2. Tax provisions – Harmonisation of laws – Turnover taxes – Common system of value added tax – Supply of services – Determination of the place of supply for tax purposes – Banking, financial and insurance operations, including those involving reinsurance (Council Directive 77/388, Art. 9(2)(e), fifth indent, 13B(a), and 13B(d), paras 2 and 3) 3. Tax provisions – Harmonisation of laws – Turnover taxes – Common system of value added tax – Exemptions provided for in the Sixth Directive (Council Directive 77/388, Art. 13B(c)) 1. A transfer for consideration, by a company established in one Member State, to an insurance company established in a third State, of a portfolio of life reinsurance contracts, with the consequence that the transferee company assumes, with the consent of the insured persons, all the rights and obligations resulting from those contracts, constitutes a supply of services within the meaning of Article 6 of Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes. Life reinsurance contracts cannot be regarded as tangible property within the meaning of Article 5(1) of the Sixth Directive. Consequently, a transaction which consists of the transfer of such contracts cannot be considered as a supply of goods within the meaning of the latter provision. (see paras 25, 28) 2. A transfer for consideration, by a company established in one Member State, to an insurance company established in a third State, of a portfolio of life reinsurance contracts, with the consequence that the transferee company assumes, with the consent of the insured persons, all the rights and obligations resulting from those contracts, does not constitute either a transaction falling under Article 9(2)(e), fifth indent, and Article 13B(a) of Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes, or a transaction falling under a combination of Article 13B(d)(2) and (3) of that directive. Such a transfer for consideration of a portfolio of life reinsurance contracts which consisted of the payment by the acquiring company of a price in return for acquiring those contracts is not, by its nature, a banking transaction. It also lacks the characteristics of an insurance transaction, namely, that the insurer undertakes, in return for prior payment of a premium, to provide the insured, in the event of materialisation of the risk covered, with the service agreed when the contract was concluded, nor is it a reinsurance transaction, by which an insurer concludes a contract in which it undertakes to assume, in return for payment of a premium and within the confines of that contract, the debts resulting, for another insurer, from its undertakings in the insurance contracts which it concluded with its own policyholders. In addition, a transfer of a portfolio of life reinsurance contracts does not constitute, by its nature, a financial transaction within the meaning of Article 13B(d) of the Sixth Directive. It involves, furthermore, a single service which cannot be artificially split into two services comprising a dealing within the meaning of Article 13B(d)(2) of the Sixth Directive and a transaction concerning debts within the meaning of Article 13B(d)(3) thereof. In the context of such a transfer, the fact that it is not the transferee but the transferor who pays the consideration by the fixing of a negative value, for the acquisition of some of the contracts transferred, does not affect the foregoing. (see paras 30, 34, 37-38, 48, 52-53, 59, operative part 1-2) 3. Article 13B(c) of Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes must be interpreted as meaning that it does not apply to a transfer for consideration of a portfolio of life reinsurance contracts, since such a transfer cannot be regarded as a supply of goods within the meaning of Article 5(1) of the Sixth Directive but must be regarded as a supply of services under Article 6 of the directive. Also, even supposing that such a transaction could be regarded as a supply of goods within the meaning of the Sixth Directive, that transaction cannot benefit from the exemption provided for in Article 13B(c) of that directive, since the exemption of that transaction would be incompatible with the objective of that provision, which is to avoid double taxation contrary to the principle of fiscal neutrality inherent in the common system of value added tax. (see paras 61, 63, operative part 3)