Request for a preliminary ruling from the Oberster Gerichtshof (Austria) lodged on 31 October 2019 — TN v WWK Lebensversicherung auf Gegenseitigkeit, VP

(Case C-803/19)

Language of the case: German

Referring court

Oberster Gerichtshof

Parties to the main proceedings

Applicant: TN

Defendants: WWK Lebensversicherung auf Gegenseitigkeit, VP

Interested party: UO

By order of 28 May 2020, the Court of Justice of the European Union (Eighth Chamber) rules as follows:

Article 35(1) in conjunction with Article 36(1) of Directive 2002/83/EC of the European Parliament and of the Council of 5 November 2002 concerning life assurance, and Article 185(1) in conjunction with Article 186(1) of Directive 2009/138/EC of the European Parliament and of the Council of 25 November 2009 on the taking-up and pursuit of the business of Insurance and Reinsurance (Solvency II), must be interpreted as not precluding a national provision according to which, in the event of the policyholder’s withdrawal from the insurance contract, the tax on insurance premiums which is owed by the policyholder and collected by the insurer and paid to the State is excluded from those amounts which the insurer is required to repay to the policyholder — who must therefore claim a tax refund from the tax administration or possibly damages from the insurer — in so far as the procedural provisions laid down by the law applicable to the insurance contract with respect to the reclaiming of sums paid by way of insurance premium tax are not such as to call in question the effectiveness of the policyholder’s right of cancellation under EU law, which it is for the referring court to ascertain.

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