Swiss Re Germany Holding GmbH v Finanzamt München für Körperschaften.
Date: 2009-10-22
31. Second, it should be pointed out that the sound functioning and uniform interpretation of the common system of VAT require that the concepts of ‘insurance transactions’ and ‘reinsurance’ in Articles 9(2)(e), fifth indent, and 13B(a) of the Sixth Directive are not defined differently depending on whether they are used in one of those provisions or the other.
32. The services referred to in the fifth indent of Article 9(2)(e) of the Sixth Directive are Community concepts which must be interpreted uniformly in order to avoid instances of double taxation or non-taxation which may result from different interpretations (see, to that effect, Case C-68/92 Commission  v France  [1993] ECR I‑5881, paragraph 14).
33. It is also settled case‑law that the exemptions referred to in Article 13 of the Sixth Directive 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 (see Case C-240/99 Skandia [2001] ECR I-1951, paragraph 23, and Case C-472/03 Arthur Andersen  [2005] ECR I‑1719, paragraph 25).
34. In that context, it must be recalled that, according to the case-law of the Court, the expression ‘insurance transactions’ means, 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 (see Case C-349/96 CPP [1999] ECR I‑973, paragraph 17; Skandia , paragraph 37; and Case C-8/01 Taksatorringen  [2003] ECR I‑13711, paragraph 39).
35. In that regard, the Court explained that, while it is common ground that the expression ‘insurance transactions’ in Article 13B(a) of the Sixth Directive covers in any event cases where the transaction in question is carried out by the actual insurer who undertook to cover the risk insured against, such an expression does not cover solely transactions carried out by the insurers themselves but is broad enough in principle 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 (see CPP , paragraph 22; Skandia , paragraph 38; and Taksatorringen , paragraph 40).
36. However, the Court has also held that, in accordance with the definition of insurance transaction set out in paragraph 34 of the present judgment, it is apparent that the identity of the person supplied with the service is relevant for the purposes of the definition of the type of services covered by Article 13B(a) of the Sixth Directive and that such a 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 (see Skandia , paragraph 41, and Taksatorringen , paragraph 41).
43. In that regard, 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 (see Taksatorringen , paragraph 36; Arthur Andersen , paragraph 24; and the order of 14 May 2008 in Joined Cases C-231/07 and C-232/07 Tiercé Ladbroke and Derby , paragraph 15).
44. In that context, it should also be noted that the transactions exempted under Article 13B(d)(2) and (3) of the Sixth Directive are defined in terms of the nature of the services provided and not in terms of the person supplying or receiving the service (see, to that effect, Case C-2/95 SDC  [1997] ECR I-3017, paragraph 32; Case C-169/04 Abbey National  [2006] ECR I-4027, paragraph 66; and Case C-453/05 Ludwig  [2007] ECR I‑5083, paragraph 25).
45. Moreover, the Court’s case-law makes clear that, in order to be regarded as exempt transactions for the purposes 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 that provision (see SDC , paragraph 66; Case C-235/00 CSC Financial Services  [2001] ECR I-10237, paragraph 25; Abbey National , paragraph 70; and Ludwig , paragraph 27).
46. In that regard, the Court has also held that, although the transactions referred to in that provision do not necessarily have to be carried out by banks or other financial institutions, they relate, nevertheless, as a whole, to the sphere of financial transactions (see Case C-455/05 Velvet & Steel Immobilien  [2007] ECR I‑3225, paragraph 22, and the order in Tiercé Ladbroke and Derby , paragraph 17).
47. Thus, a transaction which is not, by its nature, a financial transaction within the meaning of Article 13B(d) of the Sixth Directive does not come within the scope of that provision (see, to that effect, Velvet & Steel Immobilien , paragraph 23).
49. That interpretation is confirmed by the purpose of the exemptions provided for in that provision, which is, inter alia, to avoid an increase in the cost of consumer credit (see Velvet & Steel Immobilien , paragraph 24, and the order in Tiercé Ladbroke and Derby , paragraph 24). Since the carrying out of the transaction at issue in the main proceedings is unrelated to such a purpose, that transaction cannot benefit from such exemptions.
51. Furthermore, with regard to the exemption of the abovementioned transaction on the basis that it could be considered as a combination of dealing within the meaning of Article 13B(d)(2) of the Sixth Directive and a transaction concerning debts within the meaning of Article 13B(d)(3), it should be noted that, according to the case-law of the Court, every supply of a service must normally be regarded as distinct and independent and that a supply which comprises a single service from an economic point of view should not be artificially split, so as not to distort the functioning of the VAT system (see CPP , paragraph 29, and Ludwig , paragraph 17).
62. Moreover, with regard to the position regarding the transfer of the client base adopted by the Council and the Commission when the Sixth Directive was approved, to which the Bundesfinanzhof refers in its order for reference, it should be recalled that declarations formulated in the course of preparatory work leading to the adoption of a directive cannot be used for the purpose of interpreting that directive where no reference is made to the content of the declarations in the wording of the provision in question, and that they therefore have no legal significance (see Case C-375/98 Epson Europe [2000] ECR I‑4243, paragraph 26).
63. Also, even supposing that the transaction at issue in the main proceedings could be regarded as a supply of goods within the meaning of the Sixth Directive, that transaction cannot benefit from the exemption provided for in Article 13B(c) of that directive, since the exemption of that transaction would be incompatible with the objective of that provision, which is to avoid double taxation contrary to the principle of fiscal neutrality inherent in the common system of value added tax (Case C-45/95 Commission  v Italy  [1997] ECR I‑3605, paragraph 15, and the order in Joined Cases C-18/05 and C-155/05 Salus and Villa Maria Beatrice Hospital [2006] ECR I‑6199, paragraph 29).