Minister Finansów v Aspiro SA.
Date: 2016-03-17
17


In that regard, it must be borne in mind that, in the context of the cooperation between the Court and the national courts provided for in Article 267 TFEU, it is solely for the national court before which a dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the question put by national court concerns the interpretation of a provision of EU law, the Court is, in principle, bound to give a ruling. The Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see judgments in PreussenElektra, C‑379/98, EU:C:2001:160, paragraphs 38 and 39, and Melki and Abdeli, C‑188/10 and C‑189/10, EU:C:2010:363, paragraph 27).
18


In the present case, it should be recalled that the referring court is bound, as far as possible, to interpret national law in the light of EU law (see, inter alia, judgment in Pfeiffer and Others, C‑397/01 to C‑403/01, EU:C:2004:584, paragraph 113) and, in this case, the VAT Directive. Since the referring court queries the scope of a national provision the benefit of which is relied on in the main proceedings and which transposes the VAT Directive, it is not obvious that that question referred to the Court as to the interpretation to be given to that directive is irrelevant for the determination of that dispute.
20


At the outset, it must be recalled that the terms used to specify the exemptions covered by Article 135(1) of the VAT 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 (see judgment in BGŻ Leasing, C‑224/11, EU:C:2013:15, paragraph 56).
22


As regards, in the first place, insurance transactions, the essentials of such transactions are, as generally understood, that the insurer undertakes, in return for prior payment of a premium, to provide the insured, in the event of materialisation of the risk covered, with the service agreed when the contract was concluded (judgments in CPP, C‑349/96, EU:C:1999:93, paragraph 17, and Taksatorringen, C‑8/01, EU:C:2003:621, paragraph 39).
23


The Court has stated that the expression ‘insurance transactions’ covers not only transactions carried out by the insurers themselves and, is, in principle sufficiently broad to include the provision of insurance cover by a taxable person who is not himself an insurer but, in the context of a block policy, procures such cover for his customers by making use of the supplies of an insurer who assumes the risk insured. However, such transactions necessarily imply the existence of a contractual relationship between the provider of the insurance service and the person whose risks are covered by the insurance, that is to say, the insured party (see judgment in Taksatorringen, C‑8/01, EU:C:2003:621 paragraphs 40 and 41).
28


In that regard, it is true that the Court has held, in a judgment concerning financial institutions, that if the services provided, viewed broadly, in that case certain IT services, form a distinct whole and fulfil the specific, essential functions of the financial services described in points (d) and (f) of Article 135(1) of the VAT Directive, they benefit from the exemption laid down in that provision (see, to that effect, judgment in SDC, C‑2/95, EU:C:1997:278, paragraph 66).
29


However, the Court has held that the analogy with financial services cannot be applied in relation to insurance transactions, emphasising the difference in wording between Article 135(1)(a) of the VAT Directive, which only refers to insurance transactions in the strict sense, and Article 135(1)(d) and (f) of that directive, which refers to transactions ‘concerning’ or ‘relating to’ certain banking operations (see, to that effect, judgment in Taksatorringen, C‑8/01, EU:C:2003:621, paragraph 43).
31


It must be noted, moreover, that the finding made in paragraph 25 above is not called into question by the principle of fiscal neutrality. As the Advocate General stated at point 28 of her Opinion, that principle cannot extend the scope of an exemption in the absence of clear wording to that effect. That principle is not a rule of primary law which can determine the validity of an exemption, but a principle of interpretation, to be applied concurrently with the principle of strict interpretation of exemptions (see, to that effect, judgment in Deutsche Bank, C‑44/11, EU:C:2012:484, paragraph 45).
36


As the Court has already held, it is necessary to examine the content of the activities in question, (see, to that effect, judgments in Arthur Andersen, C‑472/03, EU:C:2005:135, paragraph 32; Abbey National, C‑169/04, EU:C:2006:289, paragraph 66, and J.C.M. Beheer, C‑124/07, EU:C:2008:196, paragraph 17).
37


For the purpose of this examination, two conditions are required to be met. In the first place, the service provider must have a relationship with both the insurer and the insured party (judgment in Taksatorringen, C‑8/01, EU:C:2003:621, paragraph 44). That relationship can be only indirect if the provider is a subcontractor of the broker or agent (see, to that effect, judgment in J.C.M. Beheer, C‑124/07, EU:C:2008:196, paragraph 29). In the second place, its activities must cover the essential aspects of the work of an insurance agent, such as the finding of prospective clients and their introduction to the insurer (see, to that effect, judgment in Arthur Andersen, C‑472/03, EU:C:2005:135, paragraphs 33 and 36).
39


On the other hand, as regards the second of those conditions, relating to the services provided by insurance brokers and agents, or their subcontractors, those services must be linked to the essential aspects of the work of an insurance broker or agent, which consists in the finding of prospective clients and their introduction to the insurer with a view to the conclusion of insurance contracts (see, in particular, judgments in Taksatorringen, C‑8/01, EU:C:2003:621, paragraph 45; Arthur Andersen, C‑472/03, EU:C:2005:135, paragraph 36, and J.C.M. Beheer, C‑124/07, EU:C:2008:196, paragraph 18). As regards a subcontractor, it is necessary for it to be involved in the conclusion of insurance contracts (see, to that effect, judgment in J.C.M. Beheer, C‑124/07, EU:C:2008:196, paragraphs 9 and 18).
42


In common with the services at issue in the case leading to the judgment in Arthur Andersen (C‑472/03, EU:C:2005:135), the services claims settlement services provided by a company such as Aspiro must be regarded as not constituting the performance of services carried out by an insurance agent but as a division of the activities performed by insurance companies (see, to that effect, judgment in Arthur Andersen, C‑472/03, EU:C:2005:135, paragraph 38).