Opinion of the Advocate General — ECLI:EU:C:2012:546
Date: 2012-09-06
Language of the case: Dutch
Subject matter: Right of establishment;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Belgium

summary, the foregoing indicates that the questions referred can be taken to mean that the referring court wants to know whether Article 50 of the Life Assurance Directive – with due regard for the fundamental freedoms – precludes a national arrangement whereby life assurance contracts are subject to an annual tax if, in the given year, the policyholder is habitually resident in the Member State concerned, irrespective of his place of residence at the time when the contract was concluded. B – Answer to the questions referred 29. For this question to be answered, it needs to be established how Article 50 of the Life Assurance Directive shares taxation powers amongst Member States with respect to tax on life assurance contracts. 30. Pursuant to Article 50(1) of the Life Assurance Directive, the ‘Member State of the commitment’ has that power to tax. Insurance contracts are accordingly subject only to the indirect taxes levied on insurance premiums in the Member State of the commitment. ‘Member State of the commitment’ is defined in Article 1(1)(g) of the Directive as the Member State in which the policyholder has his or her habitual residence. The present proceedings have shown that those provisions are essentially open to two interpretations. 31. On the one hand, a ‘static’ interpretation is possible, the ‘Member State of the commitment’ being specified on one occasion when the contract is concluded. The Member State in which the policyholder has his or her habitual residence at the time when the contract is concluded then has the power of taxation throughout the term of the contract. That interpretation is advocated by the taxpayer and the Estonian Government. 32. On the other hand, there is the possibility of a ‘dynamic’ interpretation, whereby the ‘Member State of the commitment’ may change with the passage of time. The Member State in which the policyholder has his or her habitual residence at the time when the tax on the assurance premium is collected would thus have the power to tax. The place of residence might change from one premium payment to the next. Such a dynamic interpretation is supported by the Belgian and Austrian Governments and by the Commission. 33. In the following, I will show that, (1) although the rules laid down by the EU legislature for the sharing of the powers to levy insurance tax are not clear, (2) the context and (3) the purpose of the arrangement lead, with due regard for the fundamental freedoms, to a static interpretation of Article 50 of the Life Assurance Directive. 1. Interpretation of the wording 34. Contrary to the arguments of some participants in the proceedings, the wording does not provide an unambiguous answer to the question posed in the present case. That is true not only of the version in the language of the proceedings, Dutch, but also of the German-, English- and French-language versions of Article 50(1) and the supplementary Article 1(1)(g) of the Life Assurance Directive. Their wording makes it clear only that the tax is to be levied where the policyholder has his or her habitual residence. The decisive question here – at what time – is not, however, answered by the wording in the aforementioned language versions. 35. Nor is any information on the relevant time to be derived from the designation as Member State ‘of the commitment’, since that ‘commitment’ can be taken to mean not only the entry into an obligation but also the existence of an obligation. Consequently, it cannot be unequivocally inferred from that wording either that the Member State is to be designated on one occasion, at the time of the conclusion of the contract, or that it must be designated anew throughout the existence of the contract. 36. Finally, the wording of Article 50(1) of the Life Assurance Directive is equally ambivalent in that it refers both to the collection of the tax on assurance premiums and to the assurance contracts which are subject to the tax. It thus remains unclear whether the decisive link according to the Directive is the conclusion of the contract or the payment of the premiums. 2. Systematic interpretation 37. However, there are numerous provisions surrounding Article 50(1) of the Life Assurance Directive which may give some indication of how it is to be interpreted. a) Collection of the insurance tax 38. In this context, reference must first be made to Article 50(3) of the Life Assurance Directive. According to that provision, the collection of the insurance tax is to be ensured on the basis of national provisions. The Member State applies those provisions to assurance undertakings which ‘cover commitments situated within its territory’. From that, the taxpayer in particular infers that the time of the conclusion of the contract determines the attribution of the power to tax. 39. However, the Commission has rightly pointed out that the wording chosen for Article 50(3) does not necessarily refer to the conclusion of the assurance contract. The view taken depends on to what the phrase ‘situated within its territory’ refers. 40. On the one hand, it may refer to ‘cover’ and so emphasise the place where the contract is concluded. On the other hand, it is also possible for that phrase, and thus the designation of the place, to be related to ‘the commitments’. The decisive factor would then in each case be where the commitments covered exist. That possible interpretation is reflected even more clearly in the English-language version, which refers to the covering of the commitments situated in a Member State. (7) The place where a commitment is situated may be, for example, the habitual residence of the policyholder, but in any event it is not the place where the contract is concluded. 41. The rule laid down in Article 50(3) thus favours neither the static nor the dynamic interpretation of Article 50(1) of the Life Assurance Directive. b) The term ‘Member State of the commitment’ in other provisions 42. The use of the phrase ‘Member State of the commitment’ in other provisions of the Life Assurance Directive may be relevant to the interpretation of Article 50(1), since Article 1(1)(g) of the Directive sets out a uniform definition of that term for all the provisions of the Directive. 43. However, that uniform definition is already guaranteed by the fact that in every provision it means the Member State in which the policyholder has his or her habitual residence. The decisive time is not, on the other hand, specified in Article 1(1)(g) of the Directive. If, then, the relevant time does not form part of the definition, it may be determined differently in any provision which refers to the ‘Member State of the commitment.’ 44. That is also true of the rule laid down in the first sentence of Article 32(1) of the Life Assurance Directive, which has been cited by the taxpayer. For the determination of the law to be applied to the assurance contract, that provision refers to the ‘Member State of the commitment’. I indeed share the taxpayer’s view that a dynamic interpretation of that provision under which the law applicable changes whenever the policyholder changes his place of residence cannot have been the intention of the EU legislature. In the context of the first sentence of Article 32(1) of the Life Assurance Directive, the ‘Member State of the commitment’ is therefore likely to be the Member State in which the policyholder is habitually resident at the time of the conclusion of the contract. 45. In view of the foregoing, that does not, however, mean that the same time is relevant in the context of the provision to be considered here, Article 50(1) of the Life Assurance Directive. Furthermore, Article 50(2) of the Life Assurance Directive provides that the fiscal arrangements applicable are not affected by the law applicable to the assurance contract pursuant to Article 32 of the Directive. Although that rule is primarily intended to cover the law chosen by way of derogation by the parties pursuant to the second sentence of Article 32(1), Article 50(2) also emphasises the independence of the applicable law from the applicable fiscal arrangements. c) Information in the assurance contract 46. However, the Life Assurance Directive contains elsewhere further rules on the assurance contract which may give some indication of how the questions referred should be answered. Thus Article 36 provides that certain information is to be communicated at the beginning and during the term of the contract. 47. Pursuant to Article 36(1) of in conjunction with Annex III(A)(a)(14) to the Life Assurance Directive, ‘general information on the tax arrangements applicable to the type of policy’ is to be communicated to the policyholder before the conclusion of the contract. What tax arrangements are applicable in this respect depends on the ‘Member State of the commitment’ within the meaning of Article 50(1) of the Life Assurance Directive. 48. During the term of the contract certain information is similarly to be communicated to the policyholder in accordance with Article 36(2) of the Life Assurance Directive. Pursuant to Annex III(B)(b)(2) to the Life Assurance Directive, that includes the updating of wide-ranging information on the rights and obligations of the parties to the contract which was to have been communicated at the time of the conclusion of the contract, in the event of an amendment of the law applicable to the contract. The reference to the information to be communicated at the time of the conclusion of the contract does not, however, extend to information on the applicable tax arrangements. 49. From that rule, it can be seen that the EU legislature clearly did not expect the applicable tax arrangements to change during the term of the contract. It cannot be assumed that, while the applicable tax arrangements are so important that they figure among the information which must be communicated before the conclusion of the contract, a communication on any change to the applicable tax arrangements during the term of the contract is superfluous. 50. Article 36 of in conjunction with Annex III to the Life Assurance Directive thus contains a clear indication of the need for a static interpretation of Article 50(1) of the Life Assurance Directive. d) Requirements regarding the supervision of activities 51. In the context of systematic interpretation, the Estonian Government has also referred to the duty of notification to which the assurance undertaking is subject pursuant to Article 41 of the Life Assurance Directive. According to that provision, an official notification is necessary, it being, pursuant to Article 42(1) and (3) of the Directive, one of the requirements for an activity in another Member State. 52. As I see it, however, the Estonian Government is wrong to assume that assurance undertakings could not comply with that notification requirement if the habitual place of residence of the policyholder at the time of the payment of the premium was decisive for taxation, since the interpretation of the term ‘carry[ing] on business’ as used in Article 41 of the Life Assurance Directive must be distinguished from the question of the attribution of the power to tax. 53. As the Commission, too, has emphasised, the question in the present case is not whether, as a result of a policyholder’s emigration to another Member State, an assurance undertaking carries on business there within the meaning Article 41 of the Life Assurance Directive. The sole question is what tax implications emigration has under Article 50 of the Life Assurance Directive. Nor is there any apparent compelling reason for giving the same answer to both questions. e) Other directives on the assurance market 54. Leaving the framework of the Life Assurance Directive, both the Belgian Government and the Commission have made a comparison with the provisions of directives applicable in EU law to insurance other than life assurance. 55. Article 46(2) of Directive 92/49, for example, provides for a tax rule which matches that laid down in Article 50(1) of the Life Assurance Directive. The only difference is that the former provision refers not to the ‘Member State of the commitment’ but to the ‘Member State in which the risk is situated within the meaning of Article 2(d) of Directive 88/357/EEC’. 56. The definition of the situation of the risk in Article 2(d) of Directive 88/357 differs as a function of the type of insurance contract. While the fourth indent of that provision contains a catch-all definition which is identical to the definition of the ‘Member State of the commitment’ in the Life Assurance Directive, the third indent considers the Member State in which the policyholder concluded the contract to be decisive in the case of travel insurance contracts. 57. I cannot, however, share the conclusion drawn by the Belgian Government from that comparison, namely that the conclusion of the contract is not therefore relevant to the application of Article 50(1) of the Life Assurance Directive. Although it is true that it can be inferred from the differing definitions given in the third and fourth indents of Article 2(d) of Directive 88/357 that the EU legislature did not intend the ‘Member State of the commitment’ to be the place where the contract was concluded, the question in the present case is not whether the place where the contract is concluded is decisive in the determination of the applicable tax arrangements under Article 50(1) of the Life Assurance Directive, but whether the habitual place of residence of the policyholder at the time when the contract is concluded is decisive. As the habitual place of residence is, as a rule, the same as the permanent residence of the policyholder, the Member State in which the contract is concluded and the Member State in which the policyholder has his habitual residence at that time may well be different. 58. Nor can Directive 2009/138, partly cited above, which will replace the various insurance directives in EU law in the future, shed any further light on the matter which might help to answer the questions referred. 59. Article 157 of that directive considers the ‘Member State in which the risk is situated or the Member State of the commitment’ to be decisive for the applicable fiscal arrangements. From that, it can be inferred, at best, that the EU legislature envisaged that a distinction was to be made between the term ‘Member State of the commitment,’ as used in Article 50(1) of the Life Assurance Directive, and the Member State in which the risk is situated. 60. It should be beyond question, however, that the place where the risk is situated is irrelevant to the application of Article 50(1) of the Life Assurance Directive, since, given the subject-matter of the contract, that place would have to be determined by reference to the place of residence of the person whose life was assured and who need not necessarily be the policyholder. As, however, that place is not decisive for either the static or the dynamic interpretation, the distinction made by Article 157 of Directive 2009/138, for instance, between the Member State of the commitment and the Member State where the risk is situated is irrelevant to the present interpretation problem. 3. Teleological interpretation 61. Now that it has been established that, from a systematic viewpoint, Article 36 of in conjunction with Annex III to the Life Assurance Directive argues for a static interpretation of Article 50(1) of the Directive, (8) I will turn to the purpose of that latter provision. 62. Its purpose has been specified by the EU legislature in recital 55 to the Life Assurance Directive. On that basis, Article 50 of the Life Assurance Directive is meant to prevent distortions of competition in assurance services between Member States. Distortions of competition may result from differences between the Member States in the collection of indirect taxes on assurance contracts. That is to be countered by the uniform application of the tax system which applies in the Member State ‘in which commitments [are] entered into’. 63. First of all, it is impossible to infer from that wording the relevant Member State as I have already explained with regard to the interpretation of Article 50(3) of the Life Assurance Directive. (9) That assessment is not fundamentally challenged by the fact that the English-language wording of recital 55 differs from that of Article 50(3) of the Life Assurance Directive. (10) Not even an interpretation of the wording of recital 55 as meaning that the Member State in which the contract is concluded determines which tax system is applied would argue for either the static or the dynamic interpretation of Article 50(1) of the Life Assurance Directive. As I have already pointed out, (11) the place at which the contract is concluded must be distinguished from the place where the policyholder is habitually resident at the time when the contract is concluded. 64. Moreover, the primary objective in teleological interpretation should not be to interpret the wording of a recital, but to take account of the sense and purpose of the provision to be interpreted here, Article 50(1) of the Life Assurance Directive, as determined from the clear sense of the recital and from other sources. a) Prevention of distortions of competition 65. Article 50(1) of the Life Assurance Directive is undoubtedly intended, according to recital 55 thereto, to prevent distortions of competition in assurance services. 66. The taxpayer has argued on this issue that there is no longer a competitive situation where a policyholder has concluded an assurance contract in the Netherlands and then moved his domicile to Belgium. A static interpretation would therefore be consistent with the objective of Article 50(1) of the Life Assurance Directive. 67. As I see it, although that may be true of competition for the conclusion of the contract, it is not true of competition for the change of service provider in the case of an existing assurance contract. The latter competition is distorted if only the habitual residence of the policyholder at the time of the conclusion of the contract is to be taken into account. After emigration, the policyholder would, for example, enjoy the privilege of non-taxation if, at the time of concluding the contract, he had his habitual place of residence in a Member State which did not provide for the taxation of assurance contracts. If, however, an assurance tax was collected at this new place of residence, it would have to be levied on the conclusion of a new assurance contract. That disadvantage might deter the policyholder from the outset from changing his assurance provider. 68. Admittedly, recital 55 to the Life Assurance Directive emphasises that the applicable tax arrangements should prevent distortions of competition ‘pending subsequent harmonisation’. That appears to imply an acknowledgement that the applicable tax arrangements do not yet entirely prevent distortions of competition. An interpretation of Article 50 of the Life Assurance Directive which does not preclude all distortions of competition would therefore still be consistent with the purpose of the arrangement. 69. That view is also endorsed by the fact that, in the discussion at the hearing of a written question from the Court of Justice, the Commission stated that, as far as it knew, questions relating to the mobility of the policyholder and its effects on the applicable tax arrangements had not been considered either in the context of the evolution of the Life Assurance Directive or of the directives preceding it. It is not therefore clear that the EU legislature intended Article 50 of the Life Assurance Directive to be the vehicle for preventing distortions of competition during a contractual relationship. 70. Given the nature of risk in the life assurance sphere, competition between current contracts and new contracts concluded with a different service provider is in any case likely to be limited, since both the risk of survival until a stipulated age and the risk of death grow with the increasing age of the policyholder. For this reason, the premiums on newly concluded life assurance contracts are likely to be structurally higher than those on existing contracts. 71. The goal of preventing distortions of competition thus tends to argue for a dynamic interpretation of Article 50(1) of the Life Assurance Directive, though not compellingly so. b) Avoiding double taxation and non-taxation 72. As the objective of the arrangement, the Court of Justice has also referred, in the context of comparable tax rules laid down in Directive 88/357 and the fourth indent of Article 2(d) of that directive, (12) not only to the avoidance of distortions of competition but also to the prevention of double taxation and non-taxation. In that respect, it has placed the emphasis on objectively verifiable characteristics. (13) 73. First of all, I am not persuaded in the present context by the Commission’s view that there is a particular risk of double taxation where taxation depends on the policyholder’s residence at the time of the conclusion of the contract. That risk exists only if different Member States construe the tax arrangement differently. In principle, then, both double taxation and non-taxation are prevented by the uniform interpretation and application of Article 50(1) of the Life Assurance Directive in the European Union, regardless of the decisive criterion in that interpretation. 74. It must be said, however, that the objective verifiability for which the Court calls is better guaranteed for all concerned by a static interpretation. The habitual place of residence of the policyholder then needs to be established only once, at the beginning of the contract. As a result, situations in which different Member States differ in their views on where a given policyholder has his habitual residence in the year concerned can be reduced to a minimum. It is indeed situations of that nature which would lead to double taxation or non‑taxation. 75. The objective associated with Article 50(1) of the Life Assurance Directive of preventing double taxation and non-taxation thus points to a static interpretation. c) Taking the fundamental freedoms into account 76. In the context of teleological interpretation, account also needs to be taken of the fundamental freedoms, in the light of which secondary law must be interpreted. (14) The very heading of Title IV of the Life Assurance Directive, of which the provision to be interpreted here, Article 50(1), forms part, points in particular to the objective of guaranteeing the freedom of establishment and the freedom to provide services. 77. In taking the fundamental freedoms into account, the aim is not, in the present context, to examine a specific infringement of one of those freedoms, but rather to determine which interpretation better safeguards the fundamental freedoms in all the cases covered by Article 50(1) of the Life Assurance Directive. 78. While there is no discernible effect on the assurance undertaking’s freedom of establishment within the scope of Article 50(1) of the Life Assurance Directive, a closer look needs to be taken at the relevance to the interpretation of that provision of the assurance undertaking’s freedom to provide services and the policyholder’s freedom of movement. i) Freedom to provide services 79. First of all, the issue is what influence the freedom to provide services granted by the Treaty may have on the interpretation of Article 50(1) of the Life Assurance Directive. 80. According to the Court’s settled case-law, national measures which prohibit, impede or render less attractive the exercise of the freedom to provide services are to be regarded as constituting restrictions on that freedom. (15) As the present case concerns not the assessment of a national measure, but the consideration of the freedom to provide services in the interpretation of secondary law, it needs to be determined which interpretation least restricts the freedom to provide services in that respect. 81. The taxpayer has argued in this context that a dynamic interpretation would restrict the freedom to provide services, since Netherlands assurance undertakings would have to pay the tax when a policyholder changed his place of residence, without being able to obtain reimbursement from the policyholder under the contract. Passing the tax on to the policyholder would consequently no longer be possible. 82. To counter that argument, however, it must be said that passing the tax on in the event of a change of residence is merely a question of the structure of the contract. The taxpayer appears not to have assumed a dynamic interpretation when structuring its contracts and has not therefore agreed an adjustment of the consideration in the event of the policyholder’s change of residence. In the case of a dynamic interpretation, the taxpayer would thus be confronted with a problem resulting not from that interpretation itself, but solely from its incorrect assessment of the applicable legal situation. It must be admitted, nevertheless, that that problem can arise only in the case of a dynamic interpretation. 83. In another respect, however, a dynamic interpretation clearly has a greater adverse effect on the freedom to provide services than a static interpretation. 84. The Estonian Government has rightly referred to the difficulties that would arise for assurance undertakings, even if the tax was passed on, as a result of a dynamic interpretation of Article 50(1) of the Life Assurance Directive. In that event, to fulfil their fiscal obligations, assurance undertakings would have constantly to verify the current habitual places of residence of their policyholders and, above all, the tax rules currently applicable at each such place. The undertakings would thus be forced to comply with many different tax rules laid down by the Member States solely because, whether they liked it or not, their contractual partners had moved their places of residence to other Member States. 85. In a static interpretation, on the other hand, the tax rules of another Member State need to be taken into account only if an assurance undertaking consciously decides to conclude a life assurance contract with a person who has his habitual place of residence in another Member State. Above all, only those tax rules are to be applied throughout the term of the contract. 86. A dynamic interpretation thus imposes a greater restriction on the cross-frontier services of an assurance undertaking, since it makes the contract subject to a different tax regime if the policyholder changes his place of residence. 87. A legal consequence of that nature might also deter assurance undertakings from continuing to provide assurance services after the policyholder changes his place of residence. To avoid the expense associated with the dynamic interpretation of Article 50(1) of the Life Assurance Directive in complying with the tax rules of another Member State, they might be at pains to conclude contracts only on condition that policyholders maintain a given place of residence. Regardless of whether such conduct by an assurance undertaking would be compatible with EU law, it is at least not to be feared in the case of a static interpretation. 88. In effect, then, the guarantee of the freedom to provide services tends to argue for a static interpretation. ii) Freedom of movement for the policyholder 89. I am, on the other hand, unable to identify a direct restriction of the policyholder’s various rights to freedom of movement due to a dynamic interpretation of Article 50(1) of the Life Assurance Directive, as some of the participants in the proceedings have claimed. 90. Although a dynamic interpretation might, depending on the structure of the contract, result in the policyholder having to pay more for his life assurance contract at his new place of residence because of a higher insurance tax, the Court has already held in settled case-law that the Treaty offers no guarantee to a citizen of the European Union that transferring his activities to a Member State other than that in which he previously resided will be neutral as regards taxation. (16) 91. On the other hand, the policyholder’s freedom of movement might be affected indirectly in the event of a dynamic interpretation if – as previously explained (17) – his assurance undertaking refused to uphold the contract after a cross-frontier change of residence. As there would be no fear of such adverse consequences for the policyholder in the case of a static interpretation, the guarantee of his freedom of movement again argues for that interpretation. d) Appropriateness of the allocation of taxation powers 92. Finally, the appropriateness of the allocation of taxation powers amongst Member States is not – contrary to the argument presented by the Austrian Government – an objective to be borne in mind in the interpretation of Article 50(1) of the Life Assurance Directive. Whether a certain allocation of the Member States’ taxation powers should be regarded as appropriate after a static rather than a dynamic interpretation could be determined only by reference to the purpose of collecting an insurance tax. That purpose might suggest which Member State should be entitled to the tax, especially if it could be determined which of the two contracting parties to a life assurance contract is intended to carry the tax burden. 93. The purpose of collecting an insurance tax is, however, irrelevant to the allocation of taxation powers amongst Member States pursuant to Article 50(1) of the Life Assurance Directive. Seen from the perspective of EU law, therefore, it is also irrelevant in principle who carries the burden of an insurance tax. For one thing, that follows from the fact that the Life Assurance Directive is based on Article 47(2) EC and Article 55 EC, which are devoted solely to the achievement of the freedom of establishment and the freedom to provide services. For another, the justification of the allocation of taxation powers for which Article 50(1) of the Life Assurance Directive provides is limited in recital 55 thereto to the prevention of distortions of competition. 94. EU law thus governs the applicability of national taxes solely from the viewpoint of distortions of competition affecting the internal market. In other words, it does not seek to levy an insurance tax or to encumber a given contracting party with the tax. Rather, the existence of national insurance taxes is accepted as given. Their collection – and thus their purpose – continues to be a matter for the Member States alone, as Article 135(1)(a) and Article 401 of Directive 2006/112/EC make clear. (18) e) Outcome of the teleological interpretation 95. From the discussion of the sense and purpose of Article 50(1) of the Life Assurance Directive, it can thus be inferred that both the objective of preventing double taxation and non-taxation and the guarantee of the freedom to provide services and also the policyholder’s freedom of movement argue for a static interpretation. Given that, the fact that a dynamic interpretation might prevent distortions of competition more effectively than a static interpretation is of less importance. V – Conclusion 96. As both the context and the sense and purpose of Article 50(1) of the Life Assurance Directive, with due regard for the fundamental freedoms, thus argue for a static interpretation, I propose that the Court of Justice should answer the questions referred by the Rechtbank van eerste aanleg te Brussel as follows: Article 50(1) of Directive 2002/83/EC of the European Parliament and of the Council of 5 November 2002 concerning life assurance should be interpreted as meaning that the ‘Member State of the commitment’ is to be determined, in the case of natural persons, at the time when the life assurance contract is concluded. It therefore precludes a national arrangement under which life assurance contracts are subject to an annual tax if in the year concerned the policyholder has his habitual place of residence in the Member State but the policyholder’s place of residence at the time of the conclusion of the contract is not taken into account. 1 – Original language: German. 2 – Directive of the European Parliament and of the Council of 5 November 2002 concerning life assurance (OJ 2002 L 345, p. 1). 3 – Council Directive of 18 June 1992 on the coordination of laws, regulations and administrative provisions relating to direct insurance other than life assurance and amending Directives 73/239/EEC and 88/357/EEC (Third Non-life Insurance Directive) (OJ 1992 L 228, p. 1). 4 – First Council Directive on the coordination of laws, regulations and administrative provisions relating to the taking-up and pursuit of the business of direct insurance other than life assurance (OJ 1973 L 228, p. 3). 5 – Second Council Directive of 22 June 1988 on the coordination of laws, regulations and administrative provisions relating to direct insurance other than life assurance and laying down provisions to facilitate the effective exercise of freedom to provide services and amending Directive 73/239/EEC (OJ 1988 L 172, p. 1). 6 – Directive of the European Parliament and of the Council of 25 November 2009 on the taking-up and pursuit of the business of Insurance and Reinsurance (Solvency II) (OJ 2009 L 335, p. 1); see recital 1 to and Article 310(1) of the directive. 7 – ‘… [E]ach Member State shall apply to those assurance undertakings which cover commitments situated within its territory …’ 8 – See point 46 et seq. above. 9 – See point 38 et seq. above. 10 – ‘… application of the tax systems … provided for by the Member States in which commitments entered into …’. 11 – See point 57 above. 12 – See point 55 et seq. above. 13 – See Case C‑191/99 Kvaerner [2001] ECR I‑4447, paragraph 51. 14 – See, to that effect, Case 246/80 Broekmeulen [1981] ECR 2311, paragraph 20; Case C‑101/01 Lindqvist [2003] ECR I‑12971, paragraph 87; Case C‑305/05 Ordre des barreaux francophones et germanophone and Others [2007] ECR I‑5305, paragraph 28; and the Opinion of Advocate General Alber in Case C‑435/00 Geha Naftiliaki and Others [2002] ECR I‑10615, point 40. 15 – See, for example, Case C‑9/11 Waypoint Aviation [2011] ECR I‑9697, paragraph 22 and the case‑law cited. 16 – See, for example, Case C‑387/01 Weigel [2004] ECR I‑4981, paragraph 55; Case C‑403/03 Schempp [2005] ECR I‑6421, paragraph 45; and Case C-392/05 Alevizos [2007] ECR I‑3505, paragraph 76. 17 – See point 87 above. 18 – Council Directive of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1).