J.C.M. Beheer BV v Staatssecretaris van Financiën.
Date: 2008-04-03
9. The activities which the appellant in the main proceedings carries out in the name and on behalf of VDL concern the conclusion of insurance contracts, the processing of transfers of insurance policies, the issue of such policies, the payment of commissions and provision of information to the insurance company and policyholders. In addition, it offers and concludes new insurance policies independently and on its own initiative.
14. As a preliminary point, it should be noted that 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 (Case C‑8/01 Taksatorringen  [2003] ECR I‑13711, paragraph 36; Case C-472/03 Arthur Andersen  [2005] ECR I‑1719, paragraph 24; and Case C‑453/05 Ludwig  [2007] ECR I‑5083, paragraph 21).
15. It is also settled case‑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 which must be placed in the general context of the common system of VAT (Case C-240/99 Skandia  [2001] ECR I-1951, paragraph 23, Arthur Andersen , paragraph 25, and Ludwig , paragraph 22).
17. It should be pointed out, first of all, that it has already been held that recognition of a person as an insurance broker or agent presupposes an examination of what the activities in question comprise (see, to that effect, Arthur Andersen , cited above, paragraph 32).
18.  It is sufficient to note, in that regard, that it can be seen from the order for reference that the activities carried out by the appellant in the main proceedings, as described in paragraph 9 of the present judgment, are unquestionably the characteristic activities of an insurance broker or agent.
20. However, the Court has decided, in paragraph 44 of the judgment in Taksatorringen , cited above, to which the national court refers in its order for reference, that the expression ‘related services performed by insurance brokers and insurance agents’ in Article 13B(a) of the Sixth Directive refers only to services provided by professionals who have a relationship with both the insurer and the insured party.
25. Thus, although the Court considered that the activities carried on by the taxable persons in question in Taksatorringen  and Arthur Andersen  did not, of their nature, constitute activities related to insurance transactions carried out by an insurance broker or an insurance agent within the meaning of Article 13B(a) of the Sixth Directive, it did not seek to analyse the relationship of those taxable persons with the insurers and the insured parties (see, to that effect, Taksatorringen , paragraphs 44 to 46, and Arthur Andersen , paragraph 36).
27. Moreover, the wording of Article 13B(a) of the Sixth Directive does not, in principle, preclude the activity of insurance broker and agent from being broken down into separate services which may then fall within the definition of ‘[insurance and reinsurance transactions, including] related services performed by insurance brokers and insurance agents’ (see, to that effect, with regard to Article 13B(d)(3) of the Sixth Directive, Case C‑2/95 SDC  [1997] ECR I‑3017, paragraph 64; with regard to Article 13B(d)(6) of the directive, see Case C‑169/04 Abbey National  [2006] ECR I‑4027, paragraph 67; and with regard to Article 13B(d)(1) of the directive, see Ludwig , paragraph 34).
28. In those circumstances, it follows from the principle of fiscal neutrality that traders must be able to choose the form of organisation which, from the strictly commercial point of view, best suits them, without running the risk of having their transactions excluded from the exemption provided for in Article 13B(a) of the Sixth Directive (see, to that effect, with regard to Article 13B(d)(6) of the Sixth Directive, Abbey National , paragraph 68, and with regard to Article 13B(d)(1) of the directive, see Ludwig , paragraph 35).
29. In the light of the foregoing considerations, the answer to the question referred to the Court should be that Article 13B(a) of the Sixth Directive must be interpreted as meaning that the fact that an insurance broker or agent does not have a direct relationship with the parties to the insurance or reinsurance contract in the conclusion of which he has been instrumental, but merely an indirect relationship with them through the intermediary of another taxable person who is, himself, in a direct relationship with one of those parties, and to whom that insurance broker or agent is contractually bound does not prevent the service provided by the latter from being exempt from VAT under that provision.
Costs