Information;Order — ECLI:EU:C:2020:413
Date: 2020-05-28
Language of the case: German
Court formation: Eighth Chamber
Subject matter: Right of establishment;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Austria

Anonymised version 
Translation  C-803/19 — 1 
Case C-803/19 
Request for a preliminary ruling 
Date lodged: 
31 October 2019 
Referring court: 
Oberster Gerichtshof (Austria) 
Date of the decision to refer: 
23 October 2019 
Appellant: 
TN 
  
The Oberste Gerichtshof (Supreme Court, Austria), sitting as the court dealing 
with appeals on points of law, [...] in the proceedings between the claimant, TN, 
2100 Korneuburg, [...] and the first and second defendants, WWK 
Lebensversicherung auf Gegenseitigkeit, 80335 Munich, [...] Federal Republic of 
Germany, [...] and VP, c/o Justizanstalt Simmering, 1110 Vienna, [...]  for the 
payment of EUR 7 484.18 plus interest and costs, and adjudicating on the appeal 
on a point of law brought by the claimant against the judgment of 28 June 2018 
[...] of the Oberlandesgerichts Wien (Vienna Higher Regional Court, Austria) 
upholding, on appeal, the judgment of 22 December 2017 of the Landesgerichts 
Korneuburg (Korneuburg Regional Court, Austria), makes the following [Or. 2] 
Order: 
A. The following question is referred to the Court of Justice of the European 
Union for a preliminary ruling, following the requests for a preliminary ruling 
from the Landesgericht Salzburg (Salzburg Regional Court, Austria) in Joined 
Cases C-355/18, C-356/18 and C-357/18, Rust-Hackner and Others v Nürnberger 
Versicherung Aktiengesellschaft Österreich and from the Bezirksgericht für 
Handelssachen Wien (Vienna District Court for Commercial Matters, Austria) in 
Case C-479/18, KL and Others v UNIQA Österreich Versicherungen and Others: 
EN 
REQUEST FOR A PRELIMINARY RULING OF 23. 10. 2019 — CASE C-803/19 
 
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Must Article 15(1) of Directive 90/619/EEC in conjunction with Article 31 of 
Directive 92/96/EEC (or Article 35(1) in conjunction with Article 36(1) of 
Directive 2002/83/EC or Article 185(1) in conjunction with Article 186(1) of 
Directive 2009/138/EC) be interpreted as precluding national provisions according 
to which, in the event of a justified (late) withdrawal of the policyholder from the 
insurance contract, the insurance tax (amounting to 4% of the net insurance 
premium) owed by the policyholder as the tax debtor and collected by the insurer 
merely in its capacity as liable party and paid to the Federal Government 
(Republic of Austria) cannot be recovered from the insurer, or at least not together 
with the net insurance premium following a reversal of the insurance contract, but 
that the policyholder is instead required to reclaim the insurance tax from the 
Federal Government (Republic of Austria) in accordance with tax law provisions 
or, if this is unsuccessful, to assert any claims for damages against the insurer? 
[Or. 3] 
B. […] [Stay of proceedings] 
Grounds: 
Preliminary considerations: 
The Court of Justice of the European Union (CJEU) has already received 
references for preliminary rulings on Case C-355/18 to C-357/18 from the 
Landgericht Salzburg (Salzburg Regional Court) and on Case C-479/18 from the 
Bezirksgericht für Handelssachen Wien (Vienna District Court for Commercial 
Matters). In proceedings before the Oberster Gerichtshof (Supreme Court), 
supplementary questions for the CJEU have arisen against a comparable factual 
and legal background. 
Legislation: 
This reference for a preliminary ruling concerns the interpretation of Article 15(1) 
of Second Council Directive 90/619/EEC of 8 November 1990 on the 
coordination of laws, regulations and administrative provisions relating to direct 
life assurance and laying down provisions to facilitate the effective exercise of 
freedom to provide services and amending Directive 79/267/EEC (OJ 1990 L 330, 
50), in conjunction with Article 31 of Council Directive 92/96/EEC of 
10 November 1992 on the coordination of laws, regulations and administrative 
provisions relating to direct life assurance and amending Directives 79/267/EEC 
and 90/619/EEC (Third Life Assurance Directive; OJ 1992 L 360, 1) or 
Article 35(1) in conjunction with Article 36(1) of Directive 2002/83/EC of the 
European Parliament and of the Council of [Or. 4] 5 November 2002 concerning 
life assurance (OJ 2002 L 345, 1) or Article 185(1) in conjunction with 
Article 186(1) of Directive 2009/138/EC of the European Parliament and of the 
Council of 25 November 2009 relating to the taking-up and pursuit of the business 
of Insurance and Reinsurance (Solvency II; OJ 2009 L 335, 1). 
WWK LEBENSVERSICHERUNG AUF GEGENSEITIGKEIT 
 
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The provisions of the österreichisches Versicherungssteuergesetz (Austrian 
Insurance Tax Act; ‘the VStG’) applicable here are as follows: 
‘Paragraph 1 (1) Tax shall be payable on the payment of insurance fees 
based on an insurance relationship established by contract or otherwise. 
Insurance fee 
Paragraph 3 (1) For the purposes of this Act, insurance fees shall mean any 
benefit to be paid to the insurer for the establishment and performance of 
the insurance relationship (examples: premiums, […]). […] 
Tax calculation 
Paragraph 5 (1) The tax will be levied on each individual insurance policy. 
The basis of assessment is 
1. usually the insurance fee 
[…]. 
Tax debtor 
Paragraph 7 (1) The tax debtor is the policyholder. The insurer is liable for 
the tax payment. The insurer has to pay the tax for the account of the 
policyholder. […] [Or. 5] 
[…] 
(3) If the insurer is neither resident (domiciled) in a Member State of the 
European Union nor a signatory state to the Agreement on the European 
Economic Area or does not have an authorised representative to receive the 
insurance fee, the policyholder must pay the tax. 
(4) In the relationship between the insurer and the policyholder, the tax is 
deemed to be part of the insurance fee, in particular in so far as it concerns 
its collection and assertion by way of legal action. Payments made by the 
policyholder towards the insurance fee are deemed to have been made in 
relation to the tax and other claims due to the insurer (Paragraph 3(1)). 
[…]’ 
[…] 
Previous proceedings: 
At the end of January 2012, the claimant and the first defendant, an insurance 
company domiciled in the Federal Republic of Germany, entered into a fund-
linked annuity insurance policy with a one-time premium amounting to EUR 194 
599.77, including a EUR 7 484.18 insurance tax, with a term of 29 years. 
REQUEST FOR A PRELIMINARY RULING OF 23. 10. 2019 — CASE C-803/19 
 
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As a result of the claimant’s withdrawal from the policy, the original court ordered 
the insurance company (the first defendant) [Or. 6] to repay the net insurance 
premium to the claimant following the first (valid) submission of the policy on 
26 March 2013 and a reversal of the transaction under the law on unjust 
enrichment. The judgment became binding in that regard. The only matter at issue 
in the appeal proceedings is the question whether the first defendant is also 
obliged to pay the insurance tax to the claimant. 
The lower courts rejected that claim given that the insurance tax constituted a 
mere ‘throughput item’ for the insurer, who was not the tax debtor. The lower 
courts argued that the claimant did not make any payment to the first defendant in 
the sense of a deliberate increase in the assets of another; the insurer had to pay 
the tax on behalf of the policyholder. The courts held that the performance 
relationship existed between the policyholder as the tax debtor and the Federal 
Government as the creditor of the tax debt. In the absence of a performance 
relationship between the insurer and the policyholder, a recovery of the insurance 
tax under the law on unjust enrichment must therefore be ruled out. 
The Oberster Gerichtshof (Supreme Court) decided to stay the proceedings on the 
appeal on a point of law brought by the claimant and to refer to the CJEU 
questions of European Union law which are essential for the decision of the case. 
Reasons for the questions referred: 
1.1. Article 15(1) of Directive 90/619/EEC in conjunction with Article 31 of 
Directive 92/96/EEC or Article 35(1) in conjunction with Article 36(1) of 
Directive 2002/83/EC or Article 185(1) in conjunction with Article 186(1) of 
Directive 2009/138/EC provide that the policyholder may withdraw from the 
contract within a specified period of time from the date on which he is informed 
[Or. 7] of the conclusion of the insurance contract. The insurer must provide 
sufficient instruction about this right when initiating the contract. 
With the declaration of withdrawal, the policyholder is released from all 
obligations resulting from that contract. 
1.2. While, in the absence of relevant European Union rules, the detailed rules 
for implementing European Union norms are a matter for the domestic legal order 
of the Member States, under the principle of their procedural autonomy, they must 
not, however, be less favourable than those governing similar domestic situations 
(principle of equivalence) or render impossible in practice or excessively difficult 
the exercise of rights conferred by European Union law (principle of 
effectiveness — cf. CJEU 3 July 2014, Case C-362/13, C-363/13 and C-407/13, 
Flamingo, para. 63, and 16 January 2014, Case C-429/12, Pohl, para. 23, and the 
cases cited in those paragraphs). It is accepted that, in the interests of legal 
certainty, the setting of appropriate time limits for bringing proceedings is 
compatible with European Union law in so far as those time limits are not such as 
to make it practically impossible or excessively difficult to exercise the rights 
WWK LEBENSVERSICHERUNG AUF GEGENSEITIGKEIT 
 
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conferred by European Union law (e.g. Case C-429/12, Pohl, para. 29; and 
28 March 2019, Case C-637/17, Cogeco, para. 42 et seq.; and the cases cited in 
those paragraphs). 
2.1. According to national law, a justified and effective withdrawal from a 
contract — as here — results in the dissolution of the contract ex tunc and 
involves a mandatory obligation to restore matters to [Or. 8] the state of affairs 
that existed previously (Paragraph 1435 of the Allgemeines Bürgerliches 
Gesetzbuch [Austrian General Civil Code, ‘the ABGB’]; see [= 
https://www.ris.bka.gv.at/jus/] […]). 
A person who has provided something to a recipient in error can rely on 
condictiones in order to reverse the transaction. That requires a performance made 
by the party who has suffered a loss to the party who has been enriched; 
performance means a conscious contribution in order to achieve a certain purpose. 
The identity of the recipient of the performance, who is obliged to provide 
restitution, depends on the legal basis on which the party who has rendered 
performance and has a right to restitution intended to render performance; the 
intention of the performing party must — as with declarations concerning legal 
transactions — be determined from the perspective of the recipient […]. If several 
persons are involved in a transfer of assets, the beneficiary and the obligor of the 
restitution must be determined on the basis of the parties’ intended purpose when 
the performance was rendered. It is therefore necessary to ask who, under the 
assumed contractual obligation or other agreement as to purpose, was meant to be 
the party rendering performance and who the recipient of the performance; the 
transaction must be reversed between those parties […]. 
2.2. As regards the reversal in accordance with Paragraph 1435 ABGB 
considered here, in light of the insurance tax it needs to be taken into account that 
pursuant to Paragraph 7(1) VStG the policyholder is the tax debtor, while the 
insurer is only liable for the collection and remittance of the tax, which is clear 
from the outset due to the way the tax is structured. The fiscal task of calculating, 
collecting and delivering the tax, which has been assigned to the insurer by the 
Federal Government does not change its character. If the State did not require 
[Or. 9] a private third party (in this case the insurer) to collect the tax levied on 
insurance contracts, the basic rule would remain that the tax debtor would have to 
pay the tax himself. This is also the case under current Austrian law for contracts 
with insurers without (residence or) domicile or representative authorised to 
receive the insurance fee in the EU/EEA (Paragraph 7(3) VStG). This also shows 
that the only consideration for the actual benefit provided by the insurer in terms 
of concluding and performing the insurance relationship (Paragraph 3(1) VStG) is 
the (net) insurance fee whereas the insurance tax does not correspond to any 
benefit provided by the insurer to the policyholder, and that there is therefore no 
relationship of equivalence. 
As far as, according to Paragraph 7(4) VStG, in the relationship between the 
insurer and the policyholder the tax is ‘deemed’ to be part of the insurance fee, ‘in 
REQUEST FOR A PRELIMINARY RULING OF 23. 10. 2019 — CASE C-803/19 
 
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particular’ as far as it concerns its collection and assertion by way of legal action, 
there are no reasons beyond the area of collection and remittance of the tax why 
the tax should form part of the insurance fee for purposes of insurance tax law. 
Attention should also be drawn to the German legal position, which had 
previously been identical, and which has recently been changed (see now 
Paragraph 7(9) German VStG 1996 as amended by the 
Verkehrsteueränderungsgesetz [Transfer Tax Amendment Act], ‘the 
VerkehrStÄndG’, German Federal Law Gazette dBGBl I 2012/57, 2433), in that 
the word ‘in particular’ has been removed as being superfluous (bill introduced by 
the German Federal Government on the VerkehrStÄndG, Bundestagsdrucksache 
[Federal Parliament Paper] 301/12). 
3.1. According to national law, the first defendant is therefore not enriched by 
the insurance tax, but the benefit was paid in in accordance with the very clear 
[Or. 10] purpose of the VStG by the tax debtor — here the claimant — in 
fulfilment of a tax obligation to the Federal Government. 
3.2. According to Austrian law on unjust enrichment, the policyholder could 
only obtain the net insurance premium, i.e. the fee paid for the insurance, from the 
insurer in the event of withdrawal from the contract to which he is entitled under 
European Union law. With regard to recovery of the insurance tax, he would have 
to be referred to tax proceedings or a damages claim against the insurer. 
3.3. The above questions therefore arise as to whether this legal position is in 
accordance with the principles of equivalence and effectiveness. 
Stay of proceedings: 
[…] 
Oberster Gerichtshof (Supreme Court), 
Vienna, 23 October 2019  
[…]