Skandinaviska Enskilda Banken AB Momsgrupp v Skatteverket.
Date: 2011-03-10
18. Before analysing the legal basis of any exemption of an underwriting guarantee such as that at issue in the main proceedings, it is appropriate to state that that guarantee falls within the scope of the Sixth Directive inasmuch as it constitutes a supply of services effected for consideration within the meaning of Article 2(1) of that directive, having regard to the fact that there is a legal relationship between the issuer and the guarantor and that the commission received by the latter from the issuer represents the value actually given in return for the guarantee supplied to the issuer by the guarantor (see, to that effect, Case C‑16/93 Tolsma  [1994] ECR I‑743, paragraph 14; Case C‑172/96 First National Bank of Chicago  [1998] ECR I‑4387, paragraph 26; and Case C‑270/09 MacDonald Resorts  [2010] ECR I‑0000, paragraph 16).
19. It must be borne in mind that, in accordance with the case-law of the Court, the exemptions referred to in Article 13 of the Sixth Directive constitute independent concepts of European Union law whose purpose is to avoid divergences in the application of the VAT system as between one Member State and another (see, in particular, Case C‑349/96 CPP [1999] ECR I‑973, paragraph 15, and Case C‑473/08 Eulitz  [2010] ECR I‑0000, paragraph 25 and the case-law cited).
20. As regards whether such an underwriting guarantee can be exempted from VAT under Article 13B(a) or (d)(1), (2) or (5) of the Sixth Directive, it must be borne in mind that the terms used to specify the exemptions in Article 13 of the Sixth Directive are to be interpreted strictly, since those exemptions constitute exceptions to the general principle that VAT is to be levied on all services supplied for consideration by a taxable person. Nevertheless, the interpretation of those terms must in particular be consistent with the objectives pursued by those exemptions and comply with the requirements of the principle of fiscal neutrality inherent in the common system of VAT. Thus, the requirement of strict interpretation does not mean that the terms used to define the exemptions referred to in Article 13 should be construed in such a way as to deprive the exemptions of their intended effect (see Eulitz , paragraph 27 and the case-law cited).
21. Finally, with regard to the reasons underlying the adoption of VAT exemptions for the transactions set out in Article 13B, it is apparent from the case-law of the Court that the purpose of those exemptions is to alleviate the difficulties connected with determining the tax base and the amount of VAT deductible and to avoid an increase in the cost of consumer credit (Case C‑455/05 Velvet & Steel Immobilien  [2007] ECR I‑3225, paragraph 24).
30. In order to answer the question referred, it must be borne in mind that, with regard to the scope of the exemption based on Article 13B(d)(5) of the Sixth Directive, the Court has held that transactions in shares and other securities are transactions on the market in marketable securities and that trade in securities involves acts which alter the legal and financial situation as between the parties ( SDC , paragraphs 72 and 73).
31. Nevertheless, the Court has also held that transactions in securities within the meaning of Article 13B(d)(5) of the Sixth Directive refer to transactions which are liable to create, alter or extinguish parties’ rights and obligations in respect of securities ( CSC Financial Services , paragraph 33).
33. Even if the share issue were ultimately to be entirely covered by market investors, so that the purchase of the remaining shares by the guarantor were no longer necessary, conclusion of a contract for an underwriting guarantee, such as that at issue in the main proceedings, would be liable of itself to create, alter or extinguish rights in ownership of shares, such a possibility being alone sufficient to classify such an underwriting guarantee as a transaction in securities within the meaning of that case-law.
36. In those circumstances, an interpretation of Article 13B(d)(5) of the Sixth Directive according to which an underwriting guarantee service would or would not be exempt from VAT depending on whether the shares issued were fully or partially subscribed would be contrary to the principle of fiscal neutrality on which, in particular, the common system of VAT established by the Sixth Directive is based, and which precludes economic operators carrying out the same transactions being treated differently in relation to the levying of VAT (Case C‑363/05 JP Morgan Fleming Claverhouse Investment Trust and The Association of Investment Trust Companies  [2007] ECR I‑5517, paragraph 29 and the case-law cited).