Opinion of the Advocate General — ECLI:EU:C:2024:243
Date: 2024-03-14
Language of the case: Dutch
Procedure: Reference for a preliminary ruling
Origin: Netherlands

summary, the applicants could therefore rely directly on Article 135(1)(g) of the VAT Directive only in so far as the pension funds at issue in the main proceedings are comparable to a UCITS (and if it is not possible to interpret national law in conformity with EU law). B. The second question 57. By the second question, the referring court wishes to know whether the principle of fiscal neutrality requires that, for the application of Article 135(1)(g) of the VAT Directive, it must also be examined whether the pension funds at issue in the main proceedings are comparable to other funds which are regarded by the Member State as special investment funds. In essence, the issue is what limits EU law imposes on Member States in the context of the power to define conferred on them and to what extent they must tax similar services equally. 58. This question is relevant, however, only if neither the pension funds at issue nor the funds classified as special investment funds by the Member State are comparable to a UCITS. In addition, the applicants would benefit from comparability only if national law could be interpreted in conformity with EU law. The direct application of the provisions of the VAT Directive is not possible in the context of the power to define conferred on Member States, as was explained in point 55 above. 59. The Member States must exercise the power conferred on them to define the meaning of ‘special investment funds’ in compliance with the principle of fiscal neutrality. (26) That principle precludes similar supplies of services which are in competition with each other from being treated differently for VAT purposes. (27) 60. In the light of the principle of democracy, which is included in the values referred to in Article 2 TEU, on which the European Union is founded, however, the Court may find the principle of neutrality to have been infringed by the democratically authorised national legislature only if it has clearly exceeded its decision-making discretion. This is the case only if, from the point of view of the average consumer, the services taxed at different rates are all but identical and could therefore readily be substituted for each other. (28) 61. The question of equality arises here only because, according to the guidance provided by the Staatssecretaris van Financiën (State Secretary for Finance, Netherlands) on 19 September 2014, an ‘individual defined contribution pension scheme’ (third pillar of the Netherlands retirement pension system) constitutes a ‘special investment fund’, the management of which is exempt from tax. 62. The purpose of the individual defined contribution pension scheme in the third pillar seems to be to enable employees voluntarily to top up other pension benefits. The aim of compulsory participation in an occupational pension fund, on the other hand, is mandatory coverage of all employees [going beyond ensuring basic pension provision (first pillar)]. In the light of the different purposes pursued by (compulsory) participation in an occupational pension fund (second pillar) and the individual voluntary pension scheme (third pillar), I have doubts as to comparability. Competition between different pillars of a pension system also seems possible only to a limited extent. 63. In addition, according to the referring court, the policy of the Netherlands tax authority is based on the assumption that unit-holders in an individual defined contribution pension scheme bear an investment risk. As I have already stated, investors within the second pillar do not bear any such investment risk where guaranteed pension commitments are the main emphasis (see above, point 42). This would also appear to preclude comparability. 64. There are therefore considerable differences which suggest an absence of comparability. It is nevertheless for the referring court to make a definitive assessment on the basis of the described criteria. 65. In summary, Member States must therefore define ‘special investment funds’ within the meaning of Article 135(1)(g) of the VAT Directive in compliance with the principle of fiscal neutrality. It is not contrary to that principle, however, if a Member State differentiates between differently structured pillars of its retirement pension system and in particular between guaranteed pension commitments and pension commitments dependent on the performance of the invested capital. VI. Conclusion 66. I therefore propose that the Court answer the questions referred for a preliminary ruling by the Rechtbank Gelderland (District Court, Gelderland, Netherlands) as follows: 1. Article 135(1)(g) of Directive 2006/112/EC on the common system of value added tax must be interpreted as meaning that an investment fund comparable to a UCITS, which is thus a ‘special investment fund’, is a fund which mostly fulfils the criteria set out in the first sentence of Article 1(2) of Directive 2009/65/EC on the coordination of laws, regulations and administrative provisions relating to undertakings for collective investment in transferable securities. This requires, in particular, that the investment fund is open to the public, that there is a redemption obligation similar to that for a UCITS and that investors bear a comparable investment risk. The latter condition depends essentially on whether the pension commitment provides primarily for guaranteed benefits or benefits dependent on the performance of the invested capital. 2. For the application of Article 135(1)(g) of Directive 2006/112 in the case of funds which are not UCITS, it must be assessed not only whether they are comparable to UCITS but also whether they are comparable to other funds that are not UCITS but are regarded by the Member State as special investment funds. The Member State may exempt the management of such special investment funds with due regard to the principle of fiscal neutrality. However, this does not preclude a comprehensible differentiation being made between the differently structured pillars of the retirement pension system in question and in particular between guaranteed pension commitments on the one hand and pension commitments dependent on the performance of the invested capital on the other hand. 1 Original language: German. 2 Council Directive of 28 November 2006 (OJ 2006 L 347, p. 1) in the version applicable to the year at issue (2009); last amended in this respect by Council Directive (EU) 2022/890 of 3 June 2022 amending Directive 2006/112/EC as regards the extension of the application period of the optional reverse charge mechanism in relation to supplies of certain goods and services susceptible to fraud and of the Quick Reaction Mechanism against VAT fraud (OJ 2022 L 155, p. 1). 3 Judgments of 13 March 2014, ATP PensionService (C‑464/12, EU:C:2014:139), and of 7 March 2013, Wheels Common Investment Fund Trustees and Others (C‑424/11, EU:C:2013:144). 4 Directive of the European Parliament and of the Council of 13 July 2009 (OJ 2009 L 302, p. 32) in the version applicable to the year at issue; last amended in this respect by Directive (EU) 2021/2261 of the European Parliament and of the Council of 15 December 2021 amending Directive 2009/65/EC as regards the use of key information documents by management companies of undertakings for collective investment in transferable securities (OJ 2021 L 455, p. 15). 5 See, with regard to the predecessor provision in Article 13B(d)(6) of Directive 77/388/EC, which had essentially the same wording as Article 135(1)(g) of the VAT Directive, judgment of 9 December 2015, Fiscale Eenheid X (C‑595/13, EU:C:2015:801, paragraph 46). 6 See, to that effect, judgment of 9 December 2015, Fiscale Eenheid X (C‑595/13, EU:C:2015:801, paragraph 34 and the case-law cited). 7 Judgments of 13 March 2014, ATP PensionService (C‑464/12, EU:C:2014:139, paragraph 46), and of 7 March 2013, Wheels Common Investment Fund Trustees and Others (C‑424/11, EU:C:2013:144, paragraph 23). 8 Judgment of 9 December 2015, Fiscale Eenheid X (C‑595/13, EU:C:2015:801, paragraph 46); see also my Opinions in Fiscale Eenheid X (C‑595/13, EU:C:2015:327, point 23); JP Morgan Fleming Claverhouse Investment Trust and The Association of Investment Trust Companies (C‑363/05, EU:C:2007:125, point 32); and Abbey National (C‑169/04, EU:C:2005:523, point 38). 9 See, with regard to other occupational pension funds, judgments of 13 March 2014, ATP PensionService (C‑464/12, EU:C:2014:139, paragraph 48), and of 7 March 2013, Wheels Common Investment Fund Trustees and Others (C‑424/11, EU:C:2013:144, paragraph 25); the main reason is that the pension funds are open only to employees in the sector, occupational group or undertaking in question. 10 Judgments of 13 March 2014, ATP PensionService (C‑464/12, EU:C:2014:139, paragraph 47), and of 7 March 2013, Wheels Common Investment Fund Trustees and Others (C‑424/11, EU:C:2013:144, paragraph 24); see also judgment of 28 June 2007, JP Morgan Fleming Claverhouse Investment Trust and The Association of Investment Trust Companies (C‑363/05, EU:C:2007:391, paragraph 48 et seq.). 11 Judgment of 7 March 2013, Wheels Common Investment Fund Trustees and Others (C‑424/11, EU:C:2013:144). 12 Judgment of 13 March 2014, ATP PensionService (C‑464/12, EU:C:2014:139). 13 Judgments of 9 December 2015, Fiscale Eenheid X (C‑595/13, EU:C:2015:801, paragraph 37); of 13 March 2014, ATP PensionService (C‑464/12, EU:C:2014:139, paragraph 48); and of 7 March 2013, Wheels Common Investment Fund Trustees and Others (C‑424/11, EU:C:2013:144, paragraph 24). 14 See my Opinion in Fiscale Eenheid X (C‑595/13, EU:C:2015:327, point 27) and judgment of 9 December 2015, Fiscale Eenheid X (C‑595/13, EU:C:2015:801, paragraph 48). 15 See my Opinion in Fiscale Eenheid X (C‑595/13, EU:C:2015:327, point 27) and judgment of 9 December 2015, Fiscale Eenheid X (C‑595/13, EU:C:2015:801, paragraph 48). 16 Directive (EU) 2016/2341 of the European Parliament and of the Council of 14 December 2016 (OJ 2016 L 354, p. 37). 17 See my Opinion in Fiscale Eenheid X (C‑595/13, EU:C:2015:327, point 28), albeit with reference to the predecessor Directive 2003/41/EC. 18 See recital 3 of the UCITS Directive. 19 See also Opinion of Advocate General Cruz Villalón in ATP PensionService (C‑464/12, EU:C:2013:840, point 64). 20 Judgment of 7 March 2013, Wheels Common Investment Fund Trustees and Others (C‑424/11, EU:C:2013:144, paragraph 27). 21 Judgment of 13 March 2014, ATP PensionService (C‑464/12, EU:C:2014:139, paragraphs 51 and 52). 22 Judgments of 10 December 2020, Golfclub Schloss Igling (C‑488/18, EU:C:2020:1013, paragraph 26), and of 15 February 2017, British Film Institute (C‑592/15, EU:C:2017:117, paragraph 13 and the case-law cited). 23 See judgments of 10 December 2020, Golfclub Schloss Igling (C‑488/18, EU:C:2020:1013, paragraph 27), and of 16 July 2015, Larentia + Minerva and Marenave Schiffahrt (C‑108/14 and C‑109/14, EU:C:2015:496, paragraph 49 and the case-law cited). 24 See, with regard to the notion of cultural services in Article 132(1)(n) of the VAT Directive, judgment of 15 February 2017, British Film Institute (C‑592/15, EU:C:2017:117, paragraphs 14, 16, 23 and 24), and, with regard to Article 132(1)(m) of the VAT Directive, judgment of 10 December 2020, Golfclub Schloss Igling (C‑488/18, EU:C:2020:1013, paragraphs 31 and 42). 25 Judgment of 28 June 2007, JP Morgan Fleming Claverhouse Investment Trust and The Association of Investment Trust Companies (C‑363/05, EU:C:2007:391, paragraph 59), with regard to the almost identical predecessor provision in Article 13B(d)(6) of Directive 77/388/EC. 26 Judgments of 9 December 2015, Fiscale Eenheid X (C‑595/13, EU:C:2015:801, paragraph 33); of 13 March 2014, ATP PensionService (C‑464/12, EU:C:2014:139, paragraph 42); and of 7 March 2013, Wheels Common Investment Fund Trustees and Others (C‑424/11, EU:C:2013:144, paragraph 18). 27 See, inter alia, judgment of 5 October 2023, Dyrektor Krajowej Informacji Skarbowej (VAT on hot dairy beverages) (C‑146/22, EU:C:2023:739, paragraph 46 and the case-law cited). 28 See my Opinion in HPA – Construções (C‑433/22, EU:C:2023:655, points 50 and 51).