ECJ Case C-235/19 (United Biscuits (Pensions Trustees) Ltd ...

minbuza.nl (Dutch) mentions the following background information for this case (unofficial translati0n):

Topic:

• Council Directive 2006/112 / EC of 28 November on the common system of value added tax;
• Sixth Council Directive (77/388 / EEC) of 17 May 1977 on the harmonization of the laws of the Member States relating to turnover taxes – Common system of value added tax: uniform basis;
• First Council Directive 79/267 / EEC of 5 March 1979 on the coordination of laws, regulations and administrative provisions relating to access to and the pursuit of direct life insurance business;

Facts:

• United Biscuits Ltd is the pension manager of the United Biscuits Pension Fund, a fixed-benefit occupational pension scheme for employees of United Biscuits.
• UB Pension Investments Ltd is the former pension manager of the UB Pension Investment Fund, a collective investment fund in which the assets of the pension scheme were invested between 1989 and 2006.
• They are hereafter referred to collectively as “managers”.
• Managers claim input VAT on the amounts they have paid to various investment managers with regard to fees for pension fund management services provided (“PF management services”).
• The PF management services consist of the management of investments on behalf of managers.
• The investment managers have not agreed with the managers to offer any form of compensation in the event that risks arise.
• These investment managers consist of both insurers within the meaning of the UK law and non-insurers who are nevertheless authorized for this by financial regulators.
• The claim relates to whether the PF management services were subject to VAT by non-insurers or whether these services were exempt “insurance transactions” within the meaning of the VAT directives.
• By decision of 30.11.2017, the High Court rejected the claim and ruled that PF management services provided by non-insurers were not exempt from VAT.
• Furthermore, the High Court did not consider that a question referred for a preliminary ruling was necessary because it was a legal clair. The managers have appealed.

Recital:

The referring court seeks clarification on the scope of the VAT directives and does not consider that the interpretation and application of the VAT directive and its relationship to the First Life Insurance Directive is an acte clair in the circumstances of the present case.

Preliminary question:

Do pension fund management services such as those provided by (a) insurers and / or (b) non-insurers represent ‘insurance transactions’ within the meaning of Article 135 (1) (a) of the VAT Directive (former Article 13B (a) of the Sixth VAT Directive)?

Cited (recent) case law: Wheels, C-424/11; CPP, C-349/96; Skandia, C-240/99; Taksator rings, C-8/01; Commission / Greece, C-13/06; Swiss Re Germany Holding, C-242/08; BGZ Leasing, C-224/11; Mapfre, C-584/13; Aspiro, C-40/15;Rank Group, C-259/10 and C-260/10.

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