Case C-472/03

Staatssecretaris van Financiën

v

Arthur Andersen & Co. Accountants c.s.

(Reference for a preliminary ruling from the Hoge Raad der Nederlanden)

(Sixth VAT directive – Article 13B(a) – Exemption of services related to insurance transactions by insurance brokers and insurance agents – Life assurance – ‘Back office’ activities)

Opinion of Advocate General Poiares Maduro delivered on 12 January 2005

Judgment of the Court (First Chamber), 3 March 2005

Summary of the Judgment

Tax provisions – Harmonisation of laws – Turnover taxes – Common system of value added tax – Exemptions provided for by the Sixth Directive – Exemption for services related to insurance transactions by insurance brokers and insurance agents – Meaning – ‘Back office’ activities consisting in assisting an insurance company in the performance of its activities – Excluded

(Council Directive 77/388, Art. 13B( a))

Article 13B(a) of Sixth Directive 77/388, relating to the exemption from value added tax of insurance and reinsurance transactions, including certain related services, must be interpreted as meaning that ‘back office’ activities, consisting in rendering services, for payment, to an insurance company, do not constitute the performance of services relating to insurance transactions carried out by an insurance broker or an insurance agent within the meaning of that provision.

Since, first, those services have specific aspects, such as the setting and payment of commission for insurance agents, the maintenance of contact with them, the handling of aspects relating to reinsurance and the supply of information to insurance agents and to the tax authorities, and, secondly, essential aspects of the work of an insurance agent, such as the finding of prospects and their introduction to the insurer are lacking, the activities in question must be regarded as a form of cooperation consisting in assisting an insurance company in the performance of activities which would normally be carried out by it, but without having a contractual relationship with the insured parties, and constitute a division of the activities of the insurance company and not the performance of services carried out by an insurance agent.

(see paras 35-36, 38-39, operative part)

JUDGMENT OF THE COURT (First Chamber) 3 March 2005 (1)

(Sixth VAT directive – Article 13B(a) – Exemption of services related to insurance transactions by insurance brokers and insurance agents – Life assurance – ‘Back office’ activities)

In Case C-472/03,REFERENCE for a preliminary ruling under Article 234 EC from the Hoge Raad der Nederlanden (Netherlands), made by decision of 7 November 2003, received at the Court on 12 November 2003, in the proceedings

v

THE COURT (First Chamber),,

composed of P. Jann, President of the Chamber, K. Lenaerts (Rapporteur), N. Colneric, K. Schiemann and E. Juhász, Judges,

Advocate General: M. Poiares Maduro,

having regard to the written procedure and further to the hearing on 11 November 2004,after considering the observations submitted on behalf of:

after hearing the Opinion of the Advocate General at the sitting on 12 January 2005,

gives the following

‘Without prejudice to other Community provisions, Member States shall exempt the following under conditions which they shall lay down for the purpose of ensuring the correct and straightforward application of the exemptions and of preventing any possible evasion, avoidance or abuse:

‘1.

…

2.…

(b)

…’

‘The following are exempt from taxation on the conditions laid down by general administrative measures:

…

(k) insurance and the performance of services carried out by insurance agents.’

‘Where a taxable person has concluded an agreement with a (life) assurance company, such as the agreement at issue between ACMC and UL, under which that taxable person undertakes, for a certain remuneration and with the aid of qualified personnel who are expert in the insurance field, most of the actual activities related to insurance ─ including, as a rule, the taking of decisions that bind the insurance company to enter into insurance contracts and maintaining contact with the agents and, as the occasion arises, with the insured ─ while the insurance contracts are concluded in the name of the insurance company and the insurance risk is borne by the latter, are the activities undertaken by that taxable person in execution of the agreement “related services performed by insurance brokers and insurance agents” within the meaning of Article 13B(a) of the Sixth Directive?’

On those grounds, the Court (First Chamber) hereby rules:

[Signatures]