Nordea Pankki Suomi Oyj.
Date: 2011-07-28
21. Before analysing the legal basis of any exemption of swift services such as those at issue in the main proceedings, it is appropriate to state that those services fall within the scope of the Sixth Directive, which is not disputed, inasmuch as they constitute 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 client financial institutions and SWIFT and that the price received by the latter from its clients represents the value actually given in return for the services supplied to them by that undertaking (see, to that effect, Case C‑540/09 Skandinaviska Enskilda Banken  [2011] ECR I-0000, paragraph 18, and the case-law cited).
22. 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 Skandinaviska Enskilda Banken , paragraph 19, and the case-law cited).
23. It must also be recalled 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 (see, to that effect, Skandinaviska Enskilda Banken , paragraph 20, and the case-law cited).
The exemption from VAT of swift services
24. According to settled case-law, in order to be characterised as exempt transactions for the purposes of points 3 and 5 of Article 13B(d) of the Sixth Directive, the services provided must, viewed broadly, form a distinct whole, fulfilling in effect the specific, essential functions of a service described in those points. As regards transactions concerning transfers, within the meaning of Article 13B(d)(3) of that directive, the services provided must have the effect of transferring funds and entail changes of a legal and financial character. A service exempt under the directive must be distinguished from a mere physical or technical supply, such as making a data-handling system available to a bank. To that end, the national court must examine in particular the extent of the responsibility of the supplier of services vis-à-vis the banks, in particular the question whether that responsibility is restricted to technical aspects or whether it extends to the specific, essential aspects of the transactions (see, to that effect, SDC , paragraph 66, and Case C‑235/00 CSC Financial Services  [2001] ECR I-10237, paragraphs 25 and 26).
25. The Court has also held that a transfer is a transaction consisting of the execution of an order for the transfer of a sum of money from one bank account to another. It is characterised in particular by the fact that it involves a change in the legal and financial situation existing between the person giving the order and the recipient and between those parties and their respective banks and, in some cases, between the banks. Moreover, the transaction which produces this change is solely the transfer of funds between accounts, irrespective of its cause (see, to that effect, SDC , par agraph 53).
26. Furthermore, according to the case-law of the Court, that analysis relating to transactions concerning transfers or payments within the meaning of Article 13B(d)(3) of the Sixth Directive applies, in principle, mutatis mutandis with regard to transactions in securities within the meaning of Article 13B(d)(5) thereof (see, to that effect, CSC Financial Services , paragraph 27, and Skandinaviska Enskilda Banken , paragraph 33).
27. Thus, nothing prevents services entrusted to operators external to financial institutions, which therefore do not have a direct link with the clients of those institutions, from being exempt from VAT (see, to that effect, SDC , paragraph 59) provided that those services, viewed broadly, form a distinct whole, fulfilling in effect the specific, essential functions of the financial transactions described in Article 13B(d)(3) and (5) of the Sixth Directive.
31. Even if it were accepted that, as Nordea submits, swift services are, on a number of markets, essential and the only services available, the mere fact that a constituent element is essential for completing an exempt transaction still does not warrant the conclusion that the service which that element represents is exempt ( SDC , paragraph 65).
33. It is also clear from the case-law cited in paragraphs 24 to 26 of this judgment that the legal and financial changes which are such as to characterise a transaction exempt from VAT result only from the transfer of ownership, actual or potential, in funds or securities, without it being necessary for the transaction thereby performed to be effective against third parties.