Case C‑40/15

Minister Finansów

v

Aspiro SA

(Request for a preliminary ruling
from the Naczelny Sąd Administracyjny)

(Reference for a preliminary ruling — Taxation — Value added tax — Directive 2006/112/EC — Article 135(1)(a) — Exemption for insurance — Definition of ‘insurance’ transactions and of ‘related services performed by insurance brokers and insurance agents’ — Claims settlement services provided by and on behalf of an insurer)

Summary — Judgment of the Court (First Chamber), 17 March 2016

Harmonisation of fiscal legislation — Common system of value added tax — Exemptions — Exemption for services related to insurance and reinsurance transactions performed by insurance brokers and insurance agents — Scope — Claims settlement services provided in the name and on behalf of an insurance company — Not included

(Council Directive 2006/112, Art. 135(1)(a))

Article 135(1)(a) of Directive 2006/112 on the common system of value added tax must be interpreted as meaning that claims settlement services, provided by a third party in the name and on behalf of an insurance company, do not fall within the exemption laid down by that provision.

In that regard, even if 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, 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. However, in a case where a provider of services does not itself undertake to ensure that the insured person is covered in respect of a risk and is not connected in any way to the insured person through a contractual relationship, even though the claims settlement service is an essential part of an insurance transaction in that it includes the determination of liability and the amount of damage, and the decision to pay or refuse compensation to the insured person, that service — provided moreover to the insurer — does not constitute an insurance transaction, within the meaning of Article 135(1)(a) of Directive 2006/112.

That finding is not undermined by the argument that it is appropriate to align the treatment of insurance transactions for the purpose of VAT with the treatment applicable to financial services. 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 Directive 2006/112, which refers only 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.

As regards, next, the definition of ‘services related’ to ‘insurance and reinsurance transactions’ that are ‘performed by insurance brokers and insurance agents’, the term ‘related’ is sufficiently broad to cover different services connected with the performance of insurance transactions and, in particular, the settlement of claims, which constitute one of the essential parts of those transactions. As regards the condition that the services concerned must be ‘performed by insurance brokers and insurance agents’, the formal aspects of a company cannot suffice to determine whether its business activities fall within the scope of the exemption or not. It is necessary to examine the content of the activities at issue. 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. That relationship can be indirect only if the provider is a sub-contractor of the broker or agent. 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. The activity of settling of claims by and on behalf of an insurer is not linked in any way to the finding of prospective clients and their introduction to the insurer with a view to the conclusion of insurance contracts. It follows that such an activity does not fall within ‘related services performed by insurance brokers and insurance agents’, within the meaning of Article 135(1)(a) of Directive 2006/112, but must be regarded as a division of the activities performed by insurance companies.

(see paras 23-25, 27, 29, 33-37, 40-42, 45, operative part)