Staatssecretaris van Financiën v Arthur Andersen & Co. Accountants c.s.
Date: 2005-03-03
22. Furthermore, as stated in the order for reference and not contested by the defendant, ACMC has no contractual relationship with the insured parties, since the insurance contracts are underwritten by UL.  The national court was therefore correct to consider that ACMC’s activities do not constitute insurance transactions within the meaning of Article 13B(a) of the Sixth Directive (see, to that effect, Case C-240/99 Skandia  [2001] ECR I-1951, paragraphs 41 and 43).
24. The terms used to specify the exemptions provided for by Article 13 of the Sixth Directive are to be interpreted strictly, since they constitute exceptions to the general principle that VAT is to be levied on all services supplied for consideration by a taxable person ( Skandia , paragraph 32, and Taksatorringen , paragraph 36).
25. It is also settled law that those exemptions constitute independent concepts of Community law whose purpose is to avoid divergences in the application of the VAT system as between one Member State and another and must be placed in the general context of the common system of VAT ( Skandia , paragraph 23).
32. However, as the Advocate General points out in point 31 of his Opinion, it cannot be inferred from that case-law that the existence of a power to render the insurer liable is the determining criterion for recognition of an insurance agent within the meaning of Article 13B(a) of the Sixth Directive.  Recognition of a person as an insurance agent presupposes an examination of what the activities in question comprise.
33. In that regard, irrespective of whether, as part of its activities, ACMC has a relationship with both the insurer and the insured parties, as required by the case-law for recognition as an insurance agent ( Taksatorringen , paragraph 44), it is apparent from the information contained in the order for reference, as supplemented by the information provided by the defendant in its written observations, that ACMC’s activities consist in handling insurance applications, assessing the risks to be insured, determining whether a medical examination is required, deciding whether to accept the risk where such an examination is deemed unnecessary, issuing, managing and rescinding insurance policies and making amendments to contracts and modifying premiums, receiving premiums, managing claims, setting and paying commission for insurance agents and maintaining contact with them, handling aspects relating to reinsurance and supplying information to insured parties and insurance agents and to other interested parties, such as the tax authorities.
36. Furthermore, as the Commission of the European Communities stated in its written observations and as the Advocate General pointed out in point 32 of his Opinion, essential aspects of the work of an insurance agent, such as the finding of prospects and their introduction to the insurer, are clearly lacking in the present case.  It is apparent from the order for reference – and the defendant has not disputed – that the activity of ACMC starts only when it handles the applications for insurance sent to it by the insurance agents through whom UL seeks prospects in the Netherlands life assurance market.
38. Consequently, the services rendered by ACMC to UL must be regarded as a form of cooperation consisting in assisting UL, for payment, in the performance of activities which would normally be carried out by it, but without having a contractual relationship with the insured parties.  Such activities constitute a division of UL’s activities and not the performance of services carried out by an insurance agent (see, by analogy, Case C-235/00 CSC Financial Services  [2001] ECR I-10237, paragraph 40).
39. In the light of the foregoing, the answer to the question referred to the Court must be that Article 13B(a) of the Sixth Directive must be interpreted as meaning that ‘back office’ activities, consisting in rendering services, for payment, to an insurance company do not constitute the performance of services relating to insurance transactions carried out by an insurance broker or an insurance agent within the meaning of that provision.