Assurandør-Societetet et v Skatteministeriet.
Date: 2003-11-20
36. It should be noted at the outset that the terms used to specify the exemptions provided for by Article 13 of the Sixth Directive must 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, in particular, Case 348/87  Stichting Uitvoering Financiële Acties  [1989] ECR 1737, paragraph 13, and Case C-287/00  Commission  v  Germany  [2002] ECR I-5811, paragraph 43).
37. It is 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 from one Member State to another (see, in particular,  Card Protection Plan , paragraph 15,  Skandia , paragraph 23, and  Commission  v  Germany , cited above, paragraph 44).
39. So far as the term   " insurance transactions"  is concerned, the Court has, however, ruled that the essentials of an insurance transaction 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 ( Card Protection Plan , paragraph 17, and  Skandia , paragraph 37).
40. The Court has, admittedly, stated that the expression   " insurance transactions"  did not cover solely transactions carried out by the insurers themselves but was broad enough in principle to include the provision of insurance cover by a taxable person who was not himself an insurer but, in the context of a block policy, procured such cover for his customers by making use of the supplies of an insurer who assumed the risk insured ( Card Protection Plan , paragraph 22, and  Skandia , paragraph 38).
41. In paragraph 41 of  Skandia , however, the Court held that, according to the definition of insurance transactions set out in paragraph 39 of the present judgment,  it appears that the identity of the person supplied with the service is relevant for purposes of the definition of the type of services covered by Article 13B(a) of the Sixth Directive and that an insurance transaction necessarily implies 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.
43. So far as concerns Taksatorringen ' s argument based on an interpretation by analogy of the judgment in  SDC , cited above, which involved financial bodies, suffice it to recall that, in contrast to the case which gave rise to the judgment in  SDC , in which the Court had to interpret Article 13B(d) of the Sixth Directive, points 3 and 5 of which refer in a general way to transactions   " concerning"  or relating to certain banking operations, rather than solely to banking operations proper, the exemption provided for in Article 13B(a) of the Sixth Directive covers insurance transactions in the strict sense (see  Skandia , paragraph 36).
44. As to whether such services are   " related services performed by insurance brokers and insurance agents" , it must be stated, as the Advocate General has set out in point 86 of his Opinion, that this expression refers only to services provided by professionals who have a relationship with both the insurer and the insured party, it being stressed that the broker is no more than an intermediary.
45. With regard to Directive 77/92, without its being necessary to rule on whether the terms   " broker"  and   " insurance agent"  must necessarily be construed in the same manner in Directive 77/92 as they are in the Sixth Directive, suffice it to note that, for the reasons stated by the Advocate General in points 90 and 91 of his Opinion, the activity of an association such as Taksatorringen fails to satisfy the conditions of Article 2(1)(a) or 2(1)(b) of Directive 77/92.  The assistance in the administration and performance of contracts of insurance referred to in Article 2(1)(a) of that directive is in addition to the activities involved in introducing persons seeking insurance and the insurance companies and in preparing and concluding insurance contracts and that referred to in Article 2(1)(b) of that directive involves the power to render the insurer liable in respect of an insured person who has incurred a loss.
46. The answer to the first question submitted must therefore be that Article 13B(a) of the Sixth Directive must be construed as meaning that motor vehicle damage assessments carried out, on behalf of its members, by an association whose members are insurance companies are neither insurance transactions nor services related to insurance transactions that are performed by insurance brokers or insurance agents within the meaning of that provision.
The second and third questions
58. It is necessary at the outset to state that it is the VAT exemption in itself which must not be liable to give rise to distortions of competition on a market in which competition will in any event be affected by the presence of an operator which provides services for its members and which is prohibited from seeking profits.  It is thus the fact that the provision of services by a group is exempt, and not the fact that this group satisfies the other conditions of the provision in question, which must be liable to give rise to distortions of competition in order that this exemption may be refused.
60. Moreover, it must be borne in mind that the aim of Article 13A of the Sixth Directive is to exempt from VAT certain activities which are in the public interest.  That provision does not, however, provide exemption from the application of VAT for every activity performed in the public interest, but only for those activities which are listed and described in great detail in it (see, in particular, Case C-149/97  Institute of the Motor Industry  [1998] ECR I-7053, paragraph 18, and  Commission  v  Germany , cited above, paragraph 45).
61. It is, admittedly, true that it follows from the case-law cited in paragraph 36 of the present judgment that the terms used to designate the exemptions referred to in Article 13 of the Sixth Directive must be construed strictly.
62. It is, however, also no less true that it is not the purpose of that case-law to impose an interpretation which would make the exemptions set out in that provision more or less inapplicable in practice.
64. It follows that the grant of VAT exemption must be refused if there is a genuine risk that the exemption may by itself, immediately or in the future, give rise to distortions of competition.