ATP PensionService A/S v Skatteministeriet.
Date: 2014-03-13
40. It should be borne in mind from the outset that, according to settled case-law, whilst the exemptions provided for in, inter alia, Article 13B(d)(6) of the Sixth Directive are autonomous concepts of EU law which must, in principle, be given a common definition in order to avoid divergences in the application of the VAT system from one Member State to another, so that the Member States cannot alter their content, that is not the case where the legislature has conferred on the Member States the task of defining certain terms of an exemption (see, to that effect, Case C‑169/04 Abbey National  [2006] ECR I‑4027, paragraphs 38 and 39; JP Morgan Fleming , paragraphs 19 and 20; and Case C‑424/11 Wheels Common Investment Fund Trustees and Others  [2013] ECR (‘ Wheels ’), paragraph 16). As it is, Article 13B(d)(6) of the Sixth Directive confers upon the Member States the task of defining the meaning of ‘special investment funds’ (see Wheels , paragraph 16).
41. The power to define thereby accorded to the Member States is, however, limited by the prohibition on undermining the very terms of the exemption that are employed by the EU legislature (see, to that effect, JP Morgan Fleming , paragraph 21, and Wheels , paragraph 17). A Member State cannot in particular, without negating the very terms ‘special investment funds’, select from among special investment funds those which are eligible for the exemption and those which are not. Article 13B(d)(6) of the Sixth Directive thus grants a Member State only the power to identify, through its domestic law, the funds which meet the definition of ‘special investment funds’ (see, to that effect, JP Morgan Fleming , paragraphs 41 to 43, and Wheels , paragraph 17).
42. The power to define the meaning of ‘special investment funds’ must also be exercised consistently with the objectives pursued by the Sixth Directive and with the principle of fiscal neutrality inherent in the common system of VAT (see, to that effect, JP Morgan Fleming , paragraphs 22 and 43, and Wheels , paragraph 18).
43. In that regard, it should be observed that the objective of exempting transactions connected with the management of special investment funds is, in particular, to facilitate investment in securities through investment undertakings by excluding the cost of VAT and, in that way, ensuring that the common system of VAT is neutral as regards the choice between direct investment in securities and investment through UCITS (see, to that effect, Abbey National , paragraph 62; JP Morgan Fleming , paragraph 45; Wheels , paragraph 19; and Case C‑275/11 GfBk  [2013] ECR, paragraph 30).
44. Specifically, the principle of fiscal neutrality precludes economic operators carrying out the same transactions from being treated differently in relation to the levying of VAT (see, to that effect, Abbey National , paragraph 56; JP Morgan Fleming , paragraph 29; and Wheels , paragraph 20).
46. In that regard, it should be borne in mind that funds which constitute UCITS within the meaning of Directive 85/611 also constitute special investment funds (see, to that effect, inter alia, Case C‑44/11 Deutsche Bank  [2012] ECR, paragraphs 31 and 32, and Wheels , paragraph 23).
47. Furthermore, funds which – without being UCITS within the meaning of Directive 85/611 – display characteristics identical to those of UCITS and thus carry out the same transactions or, at least, display features that are sufficiently comparable for them to be in competition with such undertakings must also be regarded as special investment funds (see, to that effect, Abbey National , paragraphs 53 to 56; JP Morgan Fleming , paragraphs 48 to 51; and Wheels , paragraph 24).
59. In the light of all of the foregoing, the answer to Question 1 is that, on a proper construction of Article 13B(d)(6) of the Sixth Directive, pension funds such as those at issue in the main proceedings may fall within the scope of that provision if they are funded by the persons to whom the retirement benefit is to be paid, if the savings are invested using a risk‑spreading principle, and if the pension customers bear the investment risk. In that regard, it is of little consequence that the contributions are paid by the employer; that the amount paid in is based on collective agreements between labour-market organisations; that there are different ways of paying out the savings invested; that contributions are deductible under income tax law; or that it is possible to add an insurance element which is ancillary to the other services provided.
Question 2, concerning the term ‘management of special investment funds’
61. As Article 13B(d)(6) of the Sixth Directive offers no definition of the term ‘management of special investment funds’, that provision must be interpreted in the light of the context in which it is used and of the aims and scheme of that directive, with particular regard to the underlying purpose of the exemption which it establishes (see Abbey National , paragraph 59).
65. Fourthly, the Court has made it clear that the transactions covered by that exemption are those which are specific to the business of UCITS (see Abbey National , paragraph 63). In particular, it has found that management services provided by a third‑party manager must, viewed broadly, form a distinct whole and be specific to, and essential for, the management of special investment funds (see, to that effect, Abbey National , paragraphs 70 to 72, and GfBk , paragraph 21).
66. Functions specific to UCITS include, besides portfolio management functions, functions for administering the UCITS themselves, such as those set out – under the heading ‘Administration’ – in Annex II to Directive 85/611 (see Abbey National , paragraph 64, and GfBk , paragraph 22).
68. Thus, the Court has held that services such as computing the amount of income and the price of units or shares, the valuation of assets, accounting, the preparation of statements for the distribution of income, the provision of information and documentation for periodic accounts and for tax, statistical and VAT returns, and the preparation of income forecasts are covered by the concept of ‘management’ of a special investment fund for the purposes of Article 13B(d)(6) of the Sixth Directive (see GfBk , paragraph 27).
80. That interpretation does not presuppose any particular method for effecting transfers, which may be done using accounting entries. That is so in the case of transfers between customers of a single bank, or between accounts of a single individual who acts as both the person giving the order and the recipient. At the hearing, ATP stated that, although the transfer of sums from a current account to a savings account belonging to the same account holder does not alter either the credi tor or the amount of the debt, the terms and conditions relating to the debt owed to the bank will, by contrast, be altered. A transfer between two accounts belonging to the same account holder will be carried out using accounting entries, from which point new terms and conditions will apply to the debt in question.
81. Such transactions, whether carried out by means of a physical transfer of funds or by means of accounting entries, are services which are covered by the exemption provided for in Article 13B(d)(3) of the Sixth Directive.
85. In the light of the foregoing, the answer to Questions 3 and 4 is that, on a proper construction of Article 13B(d)(3) of the Sixth Directive, the VAT exemption laid down in that provision for transactions concerning payments and transfers covers services by means of which an undertaking establishes the rights of pension customers vis-à-vis pension funds through the creation of accounts for those customers within the pension scheme system and the crediting to those pension customers’ accounts of the contributions paid, and any transactions which are ancillary to those services or which combine with those services to form a single economic supply.