C-584/13 Mapfre asistencia and Mapfre warranty

JUDGMENT OF THE COURT (Fifth Chamber)

16 July 2015 ( *1 )

‛Reference for a preliminary ruling — Taxation — Turnover tax — Scope — Exemption — Notion of ‘insurance transactions’ — Notion of ‘supply of services’ — Lump sum for a warranty covering breakdowns of a second-hand vehicle’

In Case C‑584/13,

REQUEST for a preliminary ruling under Article 267 TFEU from the Cour de cassation (France), made by decision of 13 November 2013, received at the Court on 19 November 2013, in the proceedings

Directeur général des finances publiques

v

Mapfre asistencia compania internacional de seguros y reaseguros SA,

and

Mapfre warranty SpA

v

Directeur général des finances publiques,

THE COURT (Fifth Chamber),

composed of T. von Danwitz, President of the Chamber, C. Vajda, A. Rosas (Rapporteur), E. Juhász and D. Šváby, Judges,

Advocate General: M. Szpunar,

Registrar: V. Tourrès, Administrator,

having regard to the written procedure and further to the hearing on 12 November 2014,

after considering the observations submitted on behalf of:

Mapfre asistencia compania internacional de seguros y reaseguros SA and Mapfre warranty SpA, by G. Hannotin, avocat,

the French Government, by J.-S. Pilczer and D. Colas, acting as Agents,

the European Commission, by C. Soulay and L. Lozano Palacios, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 4 February 2015,

gives the following

Judgment

Legal context and the dispute

1This request for a preliminary ruling concerns the interpretation of Articles 2 and 13(B)(a) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1), as amended by Council Directive 91/680/EEC of 16 December 1991 (OJ 1991 L 376, p. 1) (‘the Sixth Directive’).

2The request has been made in two sets of proceedings between, first, the Directeur général des finances publiques (Director General of Public Finances) and Mapfre asistencia compania internacional de seguros y reaseguros SA (‘Mapfre asistencia’), a company incorporated under Spanish law, and, second, Mapfre warranty SpA (‘Mapfre warranty’), a company incorporated under Italian law, and the Directeur général des finances publiques, concerning the taxation of the transactions carried out by those two companies.

Legal context

EU law

3Article 2 of the Sixth Directive provides:

‘The following shall be subject to value added tax [“VAT”]:

1the supply of goods or services effected for consideration within the territory of the country by a taxable person acting as such;

2the importation of goods.’

4Under Article 13(B)(a) of the Sixth Directive:

‘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:

insurance and reinsurance transactions, including related services performed by insurance brokers and insurance agents.’

5Article 33(1) of the Sixth Directive provides:

‘Without prejudice to other Community provisions, in particular those laid down in the Community provisions in force relating to the general arrangements for the holding, movement and monitoring of products subject to excise duty, this Directive shall not prevent a Member State from maintaining or introducing taxes on insurance contracts, taxes on betting and gambling, excise duties, stamp duties and, more generally, any taxes, duties or charges which cannot be characterised as turnover taxes, provided however that those taxes, duties or charges do not, in trade between Member States, give rise to formalities connected with the crossing of frontiers.’

French law

6Article 256, I, of the code général des impôts (General Tax Code), in the version applicable to the disputes in the main proceedings (‘the CGI’), provides:

‘The supply of goods or services effected for consideration within the territory of the country by a taxable person acting as such shall be subject to [VAT].’

7Article 261 C of the CGI provides:

‘The following shall be exempt from [VAT]:

…

2insurance and reinsurance transactions, including related services performed by insurance brokers and insurance agents.

…’

8Article 991 of the CGI provides:

‘Any insurance contract concluded with an insurance company or undertaking or with any other French or foreign insurer shall be subject, irrespective of the location or date on which it is or has been concluded, to a compulsory annual tax, through the payment of which any written document establishing the creation, amendment or termination by agreement of that insurance contract, and authenticated copies, extracts or copies that are issued, shall, regardless of where they are or have been drafted, be exempt from stamp duty and registered free of charge if required.

The tax shall be levied on the sums to be paid for the benefit of the insurer and any other ancillary payments which the latter may receive either directly or indirectly in respect of the insured party.’

9Article 1001-5a of the CGI states that the rate of the special tax on insurance contracts is set at 18% for insurance covering the risks of all kinds relating to terrestrial motor vehicles.

10It is also follows from Article 1001-6 of the CGI that the rate of the special tax on insurance contracts under general law is set at 9%.

The disputes in the main proceedings and the question referred

11It appears from the order for reference that second-hand motor-vehicle dealers offered purchasers of those vehicles, through the services proposed by the company NSA Sage, which subsequently became Mapfre warranty, a warranty covering the repair of mechanical breakdowns affecting those vehicles.

12Proceeding on the view that it was supplying a service, Mapfre warranty collected VAT. Mapfre asistencia, for its part, paid the tax on insurance contracts, at the standard rate of 9%, on the premiums paid by Mapfre warranty.

13The tax authorities sent Mapfre warranty a proposed tax adjustment notice in which the services provided by it were classed as insurance transactions subject to the tax on insurance contracts provided for under Article 991 of the CGI, at the rate of 18% set for motor vehicle insurance by Article 1001-5a of the CGI.

14As they were of the view, moreover, that Mapfre warranty had taken out, with Mapfre asistencia, insurance for account of whom it may concern for the benefit of the purchasers of vehicles, the purpose of which was to cover the risk of mechanical breakdowns, those tax authorities sent Mapfre asistencia a tax adjustment notice, in which they calculated the tax on insurance contracts at the rate of 18% on the sums paid by those purchasers.

15Following the rejection of their complaint, those two companies brought actions, first before the Tribunal de grande instance de Lyon (Regional Court, Lyons) and then before the cour d’appel de Lyon (Court of Appeal, Lyons), seeking relief from those tax obligations.

16The two companies claimed that the second-hand vehicle dealers were sub-contracting part of their after-sales service to Mapfre warranty and that the latter had insured its risk of financial loss with Mapfre asistencia.

17By two judgments delivered on 22 September 2011, the cour d’appel de Lyon confirmed the two decisions of the tribunal de grande instance de Lyon of 31 March 2010, declaring, in the first, that the services provided by Mapfre warranty constituted insurance transactions which were subject to the tax on insurance contracts at the rate of 18%, and, in the second, that the tax on insurance contracts was payable by Mapfre asistencia at a rate of 9%.

18It is clear from the pleas in law of the parties to the main proceedings annexed to the order for reference that the cour d’appel de Lyon stated, inter alia, that, where the purchaser of a second-hand vehicle decided to take out the additional warranty offered by the second-hand-vehicle dealer, he was supplied, in return for the additional payment required, with an application form contained in a warranty booklet bearing the letterhead of NSA Sage, which had become Mapfre warranty. According to that court, Mapfre warranty received the breakdown report from the approved garage to which the purchaser had taken the vehicle, checked that the warranty was valid and that the cost stated in the estimate was in line with the normal scale of charges and then authorised the repair or replacement of the defective part.

19The cour d’appel de Lyon pointed out that it did not follow from any provision cited by the parties or from any other evidence adduced in the course of the proceedings that the purchaser might be entitled to demand that the dealer guarantee the service in the event of defects covered by the warranty, for example where the obligor designated in the contract might be insolvent. According to that court, the dealer cannot be considered to have sub-contracted the performance of an obligation that he was not required to fulfil. By contrast, a direct contractual link was established between the purchaser and Mapfre warranty when the warranty booklet was issued, since the purchaser could require Mapfre warranty, and it alone, to perform the promised action and to bear the cost. As it was concluded between the purchaser and an operator that was not a party to the sale, that contractual commitment was established for its own purpose and constituted an end in itself. In so far as, in return for payment of an agreed sum, Mapfre warranty undertook, in the event of the occurrence of a contingent claim affecting the property insured, to provide the insured person with the service agreed at the time at which the contract was concluded, that company was engaging in an insurance activity.

20Furthermore, the cour d’appel de Lyon found that Mapfre warranty had taken out an insurance policy with Mapfre asistencia designed to cover the reimbursement of financial loss arising from a breakdown covered by a contract relating to vehicles purchased from a second-hand dealer and for which a warranty booklet had been issued. According to the cour d’appel de Lyon, that policy did not, however, create ‘insurance for account’ and did not cover the risks of all kinds relating to terrestrial motor vehicles referred to in Article 1001-5a of the CGI.

21Mapfre warranty brought an appeal on a point of law before the referring court against the judgment of the cour d’appel de Lyon, which had categorised its services as insurance transactions, subject to the tax on insurance contracts at the rate of 18%.

22The Directeur général des finances publiques also brought an appeal on a point of law before the referring court against the judgment of the cour d’appel de Lyon, which had held that the rate of the tax on insurance contracts for Mapfre asistencia was not 18%, as estimated by the tax authorities, but 9%.

23Given the connection between those two appeals, the referring court decided to join them.

24Facing uncertainty as to the interpretation of the notion of ‘insurance transactions’, which is not defined in the Sixth Directive, the Cour de cassation decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘Must Article 2 and Article 13(B)(a) of the Sixth Directive be interpreted as meaning that the service whereby an economic operator which is independent of a second-hand motor-vehicle dealer provides, in return for payment of a lump sum, a warranty covering mechanical breakdowns which may affect certain parts of the second-hand vehicle falls within the category of insurance transactions exempt from VAT or, on the contrary, as meaning that such a supply falls within the category of “supply of services”?’

Consideration of the question referred

25By its question, the referring court asks, in essence, whether Article 13(B)(a) of the Sixth Directive must be interpreted as meaning that the supply of services whereby an economic operator which is independent of a second-hand motor-vehicle dealer provides, in return for payment of a lump sum, a warranty covering mechanical breakdowns which may affect certain parts of that vehicle constitutes an exempt insurance transaction within the meaning of that provision.

26At the outset, it should be borne in mind that, according to settled case-law, the terms used to specify the exemptions in Article 13 of the Sixth Directive are to be interpreted strictly. However, the interpretation of those terms must be consistent with the objectives underlying those exemptions and must comply with the requirements of the principle of fiscal neutrality inherent in the common system of VAT. Accordingly, that requirement of strict interpretation does not mean that the terms used to specify the exemptions referred to in Article 13 must be construed in such a way as to deprive the exemptions of their intended effects (see, inter alia, judgment in Zimmermann, C‑174/11, EU:C:2012:716, paragraph 22 and the case-law cited).

27Moreover, transactions which are covered by the exemptions laid down in Article 13 of the Sixth Directive constitute independent concepts of EU law, in order to avoid divergences in the application of the VAT system from one Member State to another (see, to that effect, judgments in CPP, C‑349/96, EU:C:1999:93, paragraph 15; in Taksatorringen, C‑8/01, EU:C:2003:621, paragraph 37; in Commission v Greece, C‑13/06, EU:C:2006:765, paragraph 9; and in BGŻ Leasing, C‑224/11, EU:C:2013:15, paragraph 56).

28With regard, more specifically, to the concept of ‘insurance transactions’ in Article 13(B)(a) of the Sixth Directive, which is not defined in that directive, the Court has repeatedly held that the essentials of an insurance transaction are, as generally understood, that the insurer undertakes, in return for prior payment of a premium, to provide the insured party, in the event of materialisation of the risk covered, with the service agreed when the contract was concluded (see, to that effect, judgments in Taksatorringen, C‑8/01, EU:C:2003:621, paragraph 39; in Commission v Greece, C‑13/06, EU:C:2006:765, paragraph 10; and in BGŻ Leasing, C‑224/11, EU:C:2013:15, paragraph 58).

29The Court has stated that an insurance 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 judgments in Skandia, C‑240/99, EU:C:2001:140, paragraph 41; in Taksatorringen, C‑8/01, EU:C:2003:621, paragraph 41; and in BGŻ Leasing, C‑224/11, EU:C:2013:15, paragraph 58).

30In addition, that concept of insurance transactions is in principle broad enough to include the provision of insurance cover by a taxable person who is not himself an insurer but who, in the context of a block policy, procures such cover for his customers by making use of the services provided by an insurer who assumes the risk insured (see, to that effect, judgments in CPP, C‑349/96, EU:C:1999:93, paragraph 22, and in BGŻ Leasing, C‑224/11, EU:C:2013:15, paragraph 59).

31With regard to the examination of the present request for a preliminary ruling, it is appropriate to bear in mind that it follows from Article 94 of the Rules of Procedure of the Court and from settled case-law that, in order to lead to an interpretation of EU law that will be useful to the national court, the request for a preliminary ruling must, first, contain a summary of the subject-matter of the dispute in the main proceedings, and the relevant facts, as determined by the referring court, or at the very least, a statement of the facts on which the questions referred are based. It must, second, cover the content of the national provisions that may apply in the main proceedings and, if applicable, the relevant national case-law. Third, the referring court must set out the reasons which led it to question the interpretation or validity of certain provisions of EU law and the link which it establishes between those provisions and the national legislation applicable to the dispute in the main proceedings (see, inter alia, order in Municipiul Piatra Neamț, C‑13/14, EU:C:2014:2000, paragraph 10 and the case-law cited).

32The referring court has not, in the request for a preliminary ruling, in particular, provided factual evidence as to the nature of the provision of services at issue in the main proceedings, but has restricted itself to annexing to the order for reference the grounds of appeal raised before it, with the result that the Court is unable to determine, ultimately, whether a supply of services such as that at issue in the main proceedings does in fact constitute an exempt insurance transaction under Article 13(B)(a) of the Sixth Directive, for the purposes of the case-law cited in paragraphs 28 and 29 of the present judgment.

33By reason of the spirit of cooperation in relations between the national courts and the Court of Justice in the context of the preliminary-ruling procedure, the lack of the necessary factual findings by the referring court does not inevitably render the request for a preliminary ruling inadmissible if, in spite of those failings, the Court, having regard to the information available from the file, considers that it is in a position to give a useful answer to the referring court (see, to that effect, judgment in Azienda sanitaria locale n. 5 ‘Spezzino’ and Others, C‑113/13, EU:C:2014:2440, paragraph 48).

34With regard to a supply such as that at issue in the main proceedings, it is clear from the documents before the Court that Mapfre warranty undertakes, in return for prior payment of a lump sum, to cover the cost of the repairs to a second-hand vehicle in the event of a mechanical breakdown which may affect certain parts of that vehicle and which is defined in a ‘warranty booklet’ given to the purchaser of that vehicle.

35However, Mapfre warranty and Mapfre asistencia deny the existence, in the cases in the main proceedings, of a contractual relationship between Mapfre warranty and the purchaser of the second-hand vehicle. Both companies state, in particular, that a contractual relationship exists only between Mapfre warranty and the dealer selling that second-hand vehicle. That dealer simply commissions Mapfre warranty to perform the obligations, which it, as the dealer, has towards the purchaser by virtue of statutory or contractual provisions. According to Mapfre warranty and Mapfre asistencia, the dealer selling the second-hand vehicle is also the debtor, in relation to Mapfre warranty, owing the premium due for the warranty which Mapfre warranty provides. The dealer deducts that amount from the profit margin obtained, and it does so in order to increase the attractiveness of the second-hand vehicle.

36In that regard, subject to determination by the referring court of the precise nature of the relationships between the various parties involved in the context of the supply at issue in the main proceedings, it is clear from the documents before the Court, first, that the second-hand vehicle dealer does not participate in the implementation of the warranty agreement. If there is a mechanical breakdown covered by the warranty, the purchaser of the second-hand vehicle at issue is not obliged to have that vehicle repaired in a garage belonging to that dealer or in one which the dealer had indicated to the purchaser. The garage which the purchaser of the vehicle uses to have that vehicle repaired must, for its part, contact Mapfre warranty directly so that Mapfre warranty may approve the estimate drawn up by that garage.

37Second, even if, as Mapfre warranty and Mapfre asistencia submit, the lump sum creating entitlement to the warranty is included in the sale price of the second-hand vehicle, that amount is, ultimately, paid by the purchaser of that vehicle.

38In any event, irrespective of whether a contract is concluded between the purchaser of the second-hand vehicle and Mapfre warranty, with the dealer selling that vehicle acting merely as an intermediary, whether it is the dealer which concludes the contract in its own name but on behalf of the purchaser, or, finally, whether the dealer transfers to the purchaser the rights arising from the contract which the dealer concluded in its own name and on its own behalf with Mapfre warranty, it is clear from, inter alia, the case-law cited in paragraphs 28 and 30 of the present judgment that the concept of ‘insurance transactions’, within the meaning of Article 13(B)(a) of the Sixth Directive, is broad enough to cover each of those situations.

39All of the characteristic elements of an insurance transaction, such as those identified by the case-law cited in paragraph 28 of the present judgment, exist in each of those situations. Thus, the insurer, which in this case is Mapfre warranty, is an economic operator independent of the second-hand-vehicle dealer and the insured person is the purchaser of that vehicle. Furthermore, the risk consists of the need for the purchaser of the second-hand vehicle to pay for the repairs in the event of a mechanical breakdown covered by the warranty, the cost of which the insurer undertakes to cover. Finally, the premium consists of the lump sum which the purchaser of the second-hand vehicle pays, either in the purchase price of that vehicle or as a supplement.

40Subject to determination by the referring court, the presence of those elements makes it possible for the conclusion to be drawn that there exists between the insurer and the insured person the legal relationship which is required by the Court’s case-law in order for a service to be regarded as an ‘insurance transaction’ within the meaning of Article 13(B)(a) of the Sixth Directive.

41Furthermore, contrary to what Mapfre warranty and Mapfre asistencia essentially submit, categorisation of a service as an ‘insurance transaction’ within the meaning of Article 13(B)(a) of the Sixth Directive cannot depend on the manner in which the insurer manages the level of the risk which it undertakes to cover and calculates the exact amount of the premium.

42In this regard, as the Advocate General has observed in point 28 of his Opinion and as is clear from the case-law cited in paragraph 28 of the present judgment, the essence of an ‘insurance transaction’, within the meaning of Article 13(B)(a) of the Sixth Directive, lies in the fact that the insured person is exempted from the risk of bearing financial loss, which is uncertain, but potentially significant, by the premium, payment of which for that person is certain but limited.

43In the present case it appears to follow from the documents before the Court that the amount charged by Mapfre warranty in the form of a premium is not repaid to the purchaser of a second-hand vehicle in the event that the warranty period expires without a breakdown having occurred, or if the cost of the repairs is less than that premium. Similarly, in the event of breakdown costs exceeding the amount of the premium paid, the vehicle purchaser is not required to pay the amount exceeding that premium. Thus, the premiums charged by Mapfre warranty appear, subject to determination by the referring court, to constitute standard insurance premiums, the payment of which releases the insured person entirely from the risk covered. Mapfre warranty has also insured, with Mapfre asistencia, the risk of financial loss sustained by itself in that regard.

44In that context, the method of calculating the premiums and of managing the repair costs is a matter for Mapfre warranty’s internal organisation and cannot determine the categorisation which must be given to the services that it provides.

45Finally, Mapfre warranty and Mapfre asistencia submit that, when the vehicle manufacturers or second-hand-vehicle dealers themselves offer their customers an additional warranty, those traders are regarded as offering after-sales services, subject to VAT, whereas they nevertheless provide a service similar to that offered by Mapfre warranty to purchasers of second-hand vehicles. Such services should, they argue, be treated identically.

46It is important to note, first, that that line of argument is based on factual evidence, in particular the tax treatment of warranties provided by the dealer, which are not included in the order for reference, and, second, that the order for reference does not set out any such argument. As has been pointed out in paragraph 31 of the present judgment, it follows from Article 94 of its Rules of Procedure that, in the absence of such evidence, the Court cannot respond to such an argument.

47It follows from the foregoing that a service such as that at issue in the main proceedings appears, subject to determination by the referring court, to be capable of coming within the concept of an ‘insurance transaction’ within the meaning of Article 13(B)(a) of the Sixth Directive.

48It should, however, be noted that Mapfre warranty and Mapfre asistencia also submit that, if such a service is to be categorised as an insurance transaction, it is none the less subject to VAT because it is linked inseparably to the sale of the second-hand vehicle and should, therefore, be subject to the same tax treatment as that sale.

49In this regard, it should be recalled that, for VAT purposes, every transaction must normally be regarded as distinct and independent, as follows from Article 2(1) of the Sixth Directive (see, to that effect, judgments in Aktiebolaget NN, C‑111/05, EU:C:2007:195, paragraph 22; in Field Fisher Waterhouse, C‑392/11, EU:C:2012:597, paragraph 14; and in BGŻ Leasing, C‑224/11, EU:C:2013:15, paragraph 29).

50Nevertheless, it is clear from the case-law of the Court that, in certain circumstances, several formally distinct services, which could be supplied separately and thus give rise, separately, to taxation or exemption, must be considered to constitute a single transaction when they are not independent. There is a single supply where, inter alia, two or more elements or acts supplied by the taxable person to the customer are so closely linked that they form, objectively, a single, indivisible economic supply, which it would be artificial to split. Such is also the case where one or more elements are to be regarded as constituting the principal service, whilst one or more elements are to be regarded, by contrast, as ancillary services which share the tax treatment of the principal service (see judgment in BGŻ Leasing, C‑224/11, EU:C:2013:15, paragraph 30 and the case-law cited).

51With regard to insurance transactions, the Court has already held that every insurance transaction has, by its nature, a link with the item which it covers. None the less, such a link is not sufficient in itself to determine whether or not there is a single complex transaction for VAT purposes. If any insurance transaction were subject to VAT because the services relating to the item which it covers were subject to VAT, the very aim of Article 13(B)(a) of the Sixth Directive, that is to say, the exemption of insurance transactions, would be called into question (see, to that effect, judgment in BGŻ Leasing, C‑224/11, EU:C:2013:15, paragraph 36).

52Under the rule mentioned in paragraph 49 of the present judgment, according to which each transaction must normally be regarded as distinct and independent, it must be observed that, as a general rule, the sale of a second-hand vehicle, and the supply, by an independent economic operator to the dealer selling that second-hand vehicle, of a warranty relating to the mechanical breakdown which may affect certain parts of that vehicle cannot be regarded as being so closely linked that they form a single transaction. The fact of assessing such supplies separately cannot constitute in itself an artificial splitting of a single economic transaction, capable of distorting the functioning of the VAT system.

53That being the case, it is appropriate to examine whether there are reasons arising from the facts at issue in the main proceedings which would suggest that the elements concerned constitute a single transaction (see, to that effect, judgment in BGŻ Leasing, C‑224/11, EU:C:2013:15, paragraph 40).

54From that perspective, it must be recalled first of all that, according to the case-law of the Court on the definition of a single transaction, as set out in paragraph 50 of the present judgment, a service is regarded as ancillary to a principal service in particular where it does not constitute for the customers an aim in itself, but a means of better enjoying the principal service (see judgment in BGŻ Leasing, C‑224/11, EU:C:2013:15, paragraph 41).

55Although it is true that, by virtue of a warranty such as that at issue in the main proceedings, the risk of financial loss faced by the purchaser of a second-hand vehicle is reduced in comparison with the risk incurred in a situation in which there is no such warranty, the fact none the less remains that that circumstance flows from the very nature of the warranty. That circumstance, on its own, does not mean that it is appropriate to take the view that such a service is ancillary to the sale of the second-hand vehicle.

56As appears to follow from the documents submitted to the Court, the warranty at issue in the main proceedings is provided to the purchaser of a second-hand vehicle by a trader which is independent of the dealer which sold that second-hand vehicle and is not party to the sale, with the result that that warranty cannot, subject to determination by the referring court, be considered to be a warranty supplied by the dealer. In addition, the purchaser of a second-hand vehicle can purchase that vehicle without taking out that warranty and also has the option, without going through the dealer of that vehicle, to enter into a warranty agreement with a company other than Mapfre warranty. Finally, it appears from the warranty booklet produced before the Court by the French Government at the hearing that Mapfre warranty reserves, in certain circumstances, the right to terminate the warranty agreement without such termination appearing to affect the contract for the sale of the vehicle.

57In those circumstances, and subject to determination by the referring court, a warranty such as that at issue in the main proceedings does not appear to be so closely linked to the sale of the second-hand vehicle that those two transactions, provided, moreover, by two different suppliers, constitute an indivisible economic supply which it would be artificial to split. Consequently, they must, in principle, be considered to be distinct and independent transactions for VAT purposes.

58In view of all of the foregoing, the answer to the question referred is that Article 13(B)(a) of the Sixth Directive must be interpreted as meaning that the supply of services whereby an economic operator which is independent of a second-hand motor-vehicle dealer provides, in return for payment of a lump sum, a warranty covering mechanical breakdowns which may affect certain parts of that vehicle constitutes an exempt insurance transaction within the meaning of that provision. It is for the referring court to determine whether, in the light of circumstances such as those of the cases in the main proceedings, the supply of services at issue in the main proceedings is such a supply. The provision of such a supply and the sale of the second-hand vehicle must, in principle, be considered to be distinct and independent supplies, to be treated separately from the point of view of VAT. It is for the referring court to determine whether, having regard to the specific circumstances of the cases in the main proceedings, the sale of a second-hand vehicle and the warranty provided by an independent economic operator to the dealer selling that second-hand vehicle covering mechanical breakdowns which may affect certain parts of that vehicle are so interconnected that they must be regarded as constituting a single transaction or whether, on the contrary, they are independent transactions.

Costs

59Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

Operative part

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

Article 13(B)(a) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, as amended by Council Directive 91/680/EEC of 16 December 1991, must be interpreted as meaning that the supply of services whereby an economic operator which is independent of a second-hand motor-vehicle dealer provides, in return for payment of a lump sum, a warranty covering mechanical breakdowns which may affect certain parts of that vehicle constitutes an exempt insurance transaction within the meaning of that provision. It is for the referring court to determine whether, in the light of circumstances such as those of the cases in the main proceedings, the supply of services at issue in the main proceedings is such a supply. The provision of such a supply and the sale of the second-hand vehicle must, in principle, be considered to be distinct and independent supplies, to be treated separately from the point of view of VAT. It is for the referring court to determine whether, having regard to the specific circumstances of the cases in the main proceedings, the sale of a second-hand vehicle and the warranty provided by an independent economic operator to the dealer selling that second-hand vehicle covering mechanical breakdowns which may affect certain parts of that vehicle are so interconnected that they must be regarded as constituting a single transaction or whether, on the contrary, they are independent transactions.

Signatures

[Signatures]

( *1 ) Language of the case: French.

OPINION OF ADVOCATE GENERAL

SZPUNAR

delivered on 4 February 2015 ¹

‛Taxation — VAT — Scope — Exemptions — Concept of ‘insurance transactions’ — Concept of ‘supply of services’ — Lump sum paid for a warranty covering breakdowns of a second-hand motor vehicle’

Introduction

1The exemption of insurance transactions from value added tax (‘VAT’) has already formed the subject-matter of several judgments of the Court. However, as the present case demonstrates, those judgments have been unable to dispel all the uncertainties which may be associated with it. Therefore, the Court will have an opportunity to clarify its case-law on the matter, in particular as regards the definition of the concept of ‘insurance transactions’.

Legal framework

EU law

2The provisions of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment ² (‘the Sixth Directive’) apply ratione temporis in this case. Under Article 2(1) of that directive:

‘The following shall be subject to value added tax:

1the supply of goods or services effected for consideration within the territory of the country by a taxable person acting as such.’

3Article 13(B)(a) of the Sixth Directive provides that:

‘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:

insurance and reinsurance transactions, including related services performed by insurance brokers and insurance agents.’

4Article 33(1) of the Sixth Directive provides that:

‘Without prejudice to other Community provisions, in particular those laid down in the Community provisions in force relating to the general arrangements for the holding, movement and monitoring of products subject to excise duty, this Directive shall not prevent a Member State from maintaining or introducing taxes on insurance contracts, taxes on betting and gambling, excise duties, stamp duties and, more generally, any taxes, duties or charges which cannot be characterised as turnover taxes, provided however that those taxes, duties or charges do not, in trade between Member States, give rise to formalities connected with the crossing of frontiers.’

French law

5Under French law insurance transactions are exempt from VAT pursuant to Article 261 C of the Code général des impôts (General Tax Code). Under Article 991 of that code, insurance policies concluded within the territory of France are subject to a tax on insurance policies which is payable annually.

Facts, procedure and the question referred

6Mapfre Warranty SpA (formerly Nuovi Servizi Auto; hereinafter referred to as ‘Mapfre Warranty’) is a company incorporated under Italian law which carries on in France, under the name NSA Sage, an activity involving the provision of warranties ³ to cover breakdowns of second-hand motor vehicles. In practice, professional second-hand motor-vehicle dealers offer customers, when they purchase such motor vehicles, an additional warranty to cover the breakdown of certain parts within a specific period from the date of purchase. In the event of a breakdown covered by the warranty occurring within the warranty period, the purchaser of the motor vehicle contacts a chosen garage (which need not necessarily be a garage belonging to the motor-vehicle dealer), which draws up an estimate of the repair costs and submits it to Mapfre Warranty. Once Mapfre Warranty has accepted that estimate, the garage carries out the repairs and Mapfre Warranty covers the associated costs. For some of the period to which the main proceedings relate Mapfre Warranty was insured against losses arising from this activity with Mapfre Asistencia compania internacional de seguros y reaseguros (hereinafter referred to as ‘Mapfre Asistencia’). I shall return below to the details of Mapfre Warranty’s activity and to the legal relationships between it and the individual parties to the transaction as this matter lies at the core of the dispute in the main proceedings.

7Since it regarded its activity as constituting the provision of services taxed in accordance with the general rules, Mapfre Warranty calculated and paid VAT on the transactions which it carried out. However, by decision of 23 October 2007 relating to the period from 1 April 2004 to 31 January 2005, the competent tax authority enjoined it to subject those transactions to the tax on insurance contracts pursuant to Article 991 of the General Tax Code. The complaint which Mapfre Warranty made to the higher tax authority, the action which it brought before the Tribunal de grande instance de Lyon (Regional Court, Lyons, the first-instance court), and the appeal which it lodged with the Cour d’appel de Lyon (Court of Appeal, Lyons), were dismissed. In that situation Mapfre Warranty lodged an appeal in cassation with the Cour de cassation (Court of Cassation, which is the referring court in this case). At the same time there is also a dispute between Mapfre Asistencia and the tax authorities concerning the rate of the tax on insurance contracts applicable to the contracts between Mapfre Warranty and Mapfre Asistencia, which was also the subject of an appeal in cassation (this time brought by the tax authority) before the referring court. That court joined the two cases but the question was referred only in the context of the appeal in cassation brought by Mapfre Warranty as no issues relating to the interpretation of EU law had been raised in the other case.

8In those circumstances, the referring court decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘Must Article 2 and Article 13(B)(a) of [the] Sixth ... Directive ... be interpreted as meaning that the service whereby an economic operator which is independent of a second-hand motor-vehicle dealer provides, in return for payment of a lump sum, a warranty covering mechanical breakdowns which may affect certain parts of the second-hand vehicle falls within the category of insurance transactions exempt from value added tax or, on the contrary, as meaning that such a supply falls within the category of “supply of services”?’

9The request for a preliminary ruling was lodged at the Court on 19 November 2013. Written observations were submitted by the parties to the main proceedings, the French Government and by the European Commission, which were also represented at the hearing held on 12 November 2014.

Analysis

10The referring court essentially seeks to establish whether a service whereby an operator which is independent of second-hand motor-vehicle dealers provides, for a set period and in return for payment of a predetermined sum, a warranty covering the costs of repairing those motor vehicles in the event of mechanical breakdowns covered by that warranty constitutes an insurance transaction within the meaning of Article 13(B)(a) of the Sixth Directive and is therefore exempt from VAT.

11In order to analyse this matter it is necessary to define the concept of ‘insurance transactions’ and then to consider a service of the kind at issue in the main proceedings in the light of that definition.

The concept of ‘insurance transactions ’

12According to settled case-law, the exemptions provided for in Article 13 of the Sixth Directive have their own independent meaning in EU law, which must be given an EU-law definition with a view to preventing divergences in the application of the system of VAT from one Member State to another. ⁴ Accordingly, the concept of ‘insurance transactions’ used in Article 13(B)(a) of the Sixth Directive must also be defined independently, and not on the basis of the any meaning which may be given to that term in the law of the Member States.

13The Sixth Directive does not define the concept of ‘insurance transactions’. The Commission, however, has put forward a proposal for a directive which contains such a definition. ⁵ This is worded as follows:

‘“insurance and reinsurance” means a commitment whereby a person is obliged, in return for a payment, to provide another person, in the event of materialisation of a risk, with an indemnity or a benefit as determined by the commitment.’

However, thus far that proposal has not been adopted. Moreover, in my view the above definition does not dispel all of the uncertainties which exist in this case.

14Nor does Council Directive 73/239/EEC of 24 July 1973 on the coordination of laws, regulations and administrative provisions relating to the taking-up and pursuit of the business of direct insurance other than life assurance ⁶ define the terms ‘insurance contracts’ or ‘insurance transactions’. ⁷

15The legislative history of the Sixth Directive also provides little guidance as regards either the definition of ‘insurance transactions’ or the reason for their exemption from VAT. ⁸

16Some guidance on the interpretation of the concept under consideration has been developed in the case-law of the Court. This is summed up in the judgment in BGŻ Leasing. ⁹ According to that judgment, the essentials of an insurance transaction are, as generally understood, that the insurer undertakes, in return for prior payment of a premium, to provide the insured party, in the event of materialisation of the risk covered, with the service agreed when the contract was concluded. Furthermore, an insurance 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. The concept of ‘insurance transactions’ used in Article 13(B)(a) of the Sixth Directive 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. ¹⁰ In the same judgment the Court held that this contractual relationship between the insurer and the insured party can be established by a third party acting in its own name but on behalf of the insured party. ¹¹

17Consequently, does a service of the kind under consideration in the main proceedings constitute an insurance transaction as outlined above?

Assessment of the second-hand motor-vehicle warranty from the point of view of the concept of ‘insurance transaction ’

18It would appear, on the face of it, that a service whereby an operator which is independent of a motor-vehicle dealer undertakes, in return for payment of a predetermined sum of money, to cover the costs of repairing that motor vehicle in the event of a breakdown covered by the contract, costs which, in the absence of that contract, would have fallen to the purchaser of the motor vehicle, constitutes an insurance transaction within the meaning of Article 13(B)(a) of the Sixth Directive. However, both in its arguments before the referring court, annexed to the order for reference, and in the observations which it has submitted in this case, Mapfre Warranty challenges the classification of the transactions which form the subject-matter of the main proceedings. It is worth examining its contention since doing so will allow that category of transaction to be examined in depth.

The legal relationship between the individual parties to the transaction

19Mapfre Warranty primarily denies that there is any contractual relationship between it and the purchaser of a motor vehicle. In its view, that relationship exists only between it and the motor-vehicle dealer, which merely commissions Mapfre Warranty to perform the obligations which it and the dealer have towards the purchaser under statutory or contractual terms. According to Mapfre Warranty, the motor-vehicle dealer also pays the premium for the warranty which Mapfre Warranty provides by deducting it from the margin obtained, and it does so in order to increase the attractiveness of the motor vehicle offered for sale.

20The establishment of a legal relationship between the individual parties to the transaction is evident in the view of the national courts. However, I consider, on the one hand, that the facts of the case would appear to militate against the arguments put forward by Mapfre Warranty. On the other, I do not believe that that issue has any fundamental relevance to the interpretation of Article 13(B)(a) of the Sixth Directive.

21As regards the existence of a legal relationship between Mapfre Warranty and the purchaser of a motor vehicle, the following facts should be noted. First, according to the findings of the referring court, which are not challenged by the parties, in the event of a breakdown covered by the contract under consideration the purchaser of the motor vehicle is not obliged to have it repaired at a garage which belongs to the dealer or is designated by that dealer, but may rather choose any garage. That garage contacts Mapfre Warranty to arrange an estimate of the repair costs and Mapfre Warranty then covers those costs. The motor-vehicle dealer is not involved in any way in the performance of the warranty contract.

22Secondly, according to the application form for a warranty provided by Mapfre Warranty, which the French Government presented at the hearing and the authenticity of which Mapfre Warranty has not challenged, a warranty does not replace the dealer’s statutory obligations or liability on any other basis, in particular for latent defects. This contradicts the assertions put forward by Mapfre Warranty that the warranty which it provides merely constitutes a form of fulfilment by the dealer of the obligations resting upon it since, on the contrary, that warranty does not exempt the dealer from those obligations. The risk covered by the warranty arises on the part of the purchaser of the motor vehicle and consists of the need to meet the costs of its repair in the event of a breakdown. It would be illogical for the purchaser of the motor vehicle to pay additionally for a service to which he is already entitled by law or otherwise. ¹²

23Thirdly, Mapfre Warranty contends that it is the dealer which pays the premium for the warranty which Mapfre Warranty provides by deducting it from the price obtained. In that case, it submits, the warranty under consideration is not an optional service provided at the request of the purchaser of the motor vehicle for an additional fee, but an essential element of the sales offer relating to the motor vehicle. This does not appear to me to be compatible with the essence of that type of service. However, even supposing that that is so, it is not contested that the premium is closely linked to each specific motor vehicle and the amount thereof depends on factors such as the age and mileage of the motor vehicle and the duration of the warranty. Therefore, in any event the purchaser of the motor vehicle ultimately covers the cost of the premium even if it is included in the price of the vehicle.

24As I have already pointed out, it is for the national courts to assess the legal relationships between the individual parties in a particular case. However, that should not affect the interpretation of Article 13(B)(a) of the Sixth Directive since, regardless of whether the motor-vehicle purchaser enters into a contract with Mapfre Warranty and the dealer acts merely as an intermediary, whether it is the dealer which enters into the contract in its own name but on behalf of the purchaser, or, finally, whether the motor-vehicle dealer transfers to the purchaser the entitlements arising from the contract which it concluded in its own name and on its own behalf with Mapfre Warranty, the concept of ‘insurance transactions’ used in the abovementioned provision of the directive is broad enough to cover each of those situations.

25All of the characteristic elements of an insurance transaction exist in each of those situations. There is an insured party, who is the purchaser of the motor vehicle, and an insurer, which in this case is Mapfre Warranty. There is a risk in the form of the need for the motor-vehicle purchaser to bear the repair costs in the event of a breakdown covered by the warranty, which the insurer undertakes to cover. Finally, there is the premium which the motor-vehicle purchaser pays, whether in the purchase price of that motor vehicle or as an additional payment. In my view, this is sufficient to establish the existence of a legal relationship between the insurer and the insured party which the case-law of the Court requires for a transaction to be regarded as an insurance transaction within the meaning of Article 13(B)(a) of the Sixth Directive.

The problem of ‘mutualisation of risk’

26Mapfre Warranty also contends that, in order for a transaction to be regarded as an insurance transaction within the meaning of Article 13(B)(a) of the Sixth Directive, it is necessary for the insurer to manage and neutralise the risk by means of mutualisation (that is to say, by spreading it across all insured parties and offsetting it using the reserves created from the premiums paid in an amount resulting from the laws of statistics). In the view of Mapfre Warranty, the activity which it carries on consists merely in taking over from the motor-vehicle dealer the obligation to carry out the repair, which Mapfre Warranty then entrusts to a subcontractor, namely the garage selected by the purchaser of the vehicle.

27However, I am not convinced by these arguments. First, as I have pointed out, the risk covered by the warranty lies not with the motor-vehicle dealer but rather with the purchaser thereof. The warranty provided by Mapfre Warranty does not exempt the dealer from its obligations towards the purchaser which arise from statutory or contractual provisions.

28Secondly, the essence of insurance (at least property insurance) lies in the fact that the insured person is exempted from the risk of bearing in future an uncertain, but potentially significant, loss by the payment of a certain, but limited, sum of money.

29While it is not contested that the amounts charged by Mapfre Warranty by way of premiums are not returned to motor-vehicle purchasers in the event that the warranty period expires without a breakdown, or if the repair costs are less than that premium, at the same time, in the event of breakdown costs exceeding the premium paid, the motor-vehicle purchaser is not required to pay any additional amounts. Thus, the premiums charged by Mapfre Warranty are in no way a form of advance payment to cover the costs of any repair but are standard insurance premiums, the payment of which releases the insured person in full from the risk insured against.

30Therefore, Mapfre Warranty spreads the insured risk in such a way that the premiums paid on all the motor vehicles covered by the warranty cover the cost of repairing those which have actually broken down. Otherwise, its activity would make no economic sense. However, the question as to how Mapfre Warranty calculates the amount of the premium and manages the amount of the repair costs (for example, by purchasing spare parts from manufacturers at wholesale prices or entrusting certain repairs to garages which it has itself selected) is an internal organisational matter of that company and remains entirely irrelevant from the point of view of whether or not the activity which it carries on is classified as an insurance activity. It would simply be inconsistent with the principle of tax neutrality to make the scope of the exemptions laid down in the Sixth Directive contingent on internal aspects of the financial model for the functioning of individual undertakings which have no bearing on the essence of the transactions which they carry out.

31The same applies to the fact that Mapfre Warranty was in turn insured against financial losses with Mapfre Asistencia. The fact of insuring the activity carried on against financial losses does not deprive that activity of its nature as an insurance activity. No statistical techniques guarantee infallibility and therefore an insurance activity can also entail losses. In addition, under Article 4(1) of the Sixth Directive, any person who carries out an economic activity, ‘whatever the … results of that activity’, is to be regarded as a taxable person for the purposes of VAT. I see no reason why the same should not apply to an exempted activity.

32To sum up, I take the view that classification of transactions as insurance transactions within the meaning of Article 13(B)(a) of the Sixth Directive is not contingent on the manner in which the insurer manages the level of the insured risk and calculates the corresponding amount of the premium.

The problem of different tax treatment of similar services

33Mapfre Warranty also submits that the additional warranties provided, for an extra charge, by motor-vehicle manufacturers or dealers are treated as an after-sales service and are subject to VAT. Therefore, it considers that to exempt the transactions carried out by Mapfre Warranty, as insurance transactions, from VAT infringes the principle of tax neutrality as it results in similar services being treated differently.

34In my view, however, those two types of service are not similar. By providing a warranty for its product, a manufacturer guarantees that it will operate without breaking down for a particular period. It must be assumed that the manufacturer has a fundamental, if not complete, influence over that. Therefore, by providing a warranty it does not assume any significant risk since it is able to predict very precisely the period during which its product will most likely not break down. Obviously, a warranty guaranteeing that a product will not break down must be complemented by an undertaking to repair or exchange it free of charge if such a breakdown none the less occurs. Otherwise, that warranty would make no economic sense. However, even in that case the manufacturer does not cover the costs of the repairs carried out by any workshop selected by the purchaser of the product, but carries out those repairs itself or entrusts them to an authorised repair centre. It thereby retains control over the costs of those repairs. Similarly, a dealer in second-hand motor vehicles, who knows the technical condition of each of them, is in a position to guarantee that a specific breakdown will not occur in a particular motor vehicle for a particular period and, where necessary, offer free repairs at its own garage or by a subcontractor designated by it. This constitutes an element of the ‘after-sales service’ which is closely linked to the product sold and is for that reason alone taxed in the same way as the supply of that product. ¹³

35Therefore, manufacturers and dealers do not so much undertake to provide a particular service in the event that a particular risk materialises, but rather guarantee that that risk will not materialise, and ensuring the free repair or exchange of the product covered by the warranty constitutes one of the elements of fulfilling that obligation towards the purchaser. Thus, the obligation arising from the warranty is, by its nature, accessory to the main purpose of the contract, which is the sale of the item.

36The situation of the insurer, which is not the manufacturer or seller of the insured motor vehicle, is entirely different since it has no influence over the vehicle’s technical condition and does not even know what that condition is. Therefore, it insures against a risk which is independent of it. It is merely able to predict statistically, in respect of a sufficiently large number of insured persons, the likelihood of that risk materialising and the average amount of the damage, which allows it to calculate the corresponding amount of the premium. Thus, there is an entirely different mechanism at work than in the case of a warranty provided by manufacturers or sellers. The economic rationale of such activity is also different and consequently it can be subject to different rules of taxation.

Summary

37In the light of the foregoing, I take the view that a service whereby an operator which is independent of second-hand motor-vehicle dealers provides, for a set period and in return for payment of a predetermined sum, a warranty covering the costs of repair of those motor vehicles in the event of mechanical breakdowns covered by that warranty, constitutes an insurance transaction within the meaning of Article 13(B)(a) of the Sixth Directive and is therefore exempt from VAT.

38In this case it is common ground that Mapfre Warranty is an operator which is independent of second-hand motor-vehicle dealers and that the question referred also concerns that situation. However, the above conclusion must not be interpreted a contrario as meaning that transactions carried out by certain operators which are not independent of the manufacturers or sellers of particular products, in particular those operating as insurance providers, do not constitute insurance transactions.

The differing nature of transactions under consideration in the main proceedings and transactions relating to the supply of second-hand motor vehicles

39Finally, Mapfre Warranty submits that, even if the transactions which it carries out are to be regarded as insurance transactions, they should be subject to VAT since they are so indissocably linked with the transactions relating to the sale of second-hand motor vehicles covered by the warranty that they essentially form a single transaction which must be taxed uniformly. The referring court does not raise this issue directly in the question referred but it certainly has a bearing on the correct taxation of the transactions which form the subject-matter of the main proceedings and should therefore be considered.

40According to the settled case-law of the Court, for VAT purposes every supply must normally be regarded as distinct and independent; in certain circumstances, however, several formally distinct services, which could be supplied separately and thus give rise in turn to taxation or exemption, must be considered to be a single transaction when they are not independent. Such is the case in particular where it would be artificial to split the services from an economic point of view or where ancillary services must be taxed in the same way as the principal service. That matter must be considered in the light of the facts of the specific case, that is to say, it is for the national courts to determine. However, it is for the Court of Justice to provide the national courts with all the guidance as to the interpretation of EU law which may be of assistance in adjudicating on the cases pending before them. ¹⁴

41As regards insurance transactions, the Court has ruled that every insurance transaction has, by its nature, a link with the item which it covers. None the less, such a connection is not sufficient in itself to determine whether or not there is a single complex transaction for VAT purposes. If any insurance transaction were subject to VAT because the services relating to the item which it covers were subject to VAT, the purpose of the exemption of insurance transactions would be called into question. ¹⁵

42In my view, it is sufficient in the present case to find that the warranty in question is an additional service in relation to the motor-vehicle supply transaction and has a distinct, self-contained, economic rationale. The purchaser of the motor vehicle can purchase it and use it without any breakdown warranty and can also conclude a warranty contract with an operator other than Mapfre Warranty, without having recourse to involvement of the motor-vehicle dealer. It is also significant that the warranty here under consideration is provided by an operator which is independent of the motor-vehicle dealer and therefore it cannot be regarded as a warranty provided by the dealer. Finally, Mapfre Warranty reserves the right, under certain circumstances, to withdraw from the warranty contract, without this in any way affecting the sales agreement in relation to the motor vehicle. In my view, these facts demonstrate unequivocally that a warranty of the kind at issue in the main proceedings is not indissociably linked to the motor-vehicle supply transaction and therefore does not have to be taxed in the same way as that supply.

Conclusion

43In the light of the foregoing, I propose that the Court reply as follows to the question referred by the Cour de cassation:

A service whereby an operator which is independent of second-hand motor-vehicle dealers provides, for a set period and in return for payment of a predetermined sum, a warranty covering the costs of repairing those motor vehicles in the event of mechanical breakdowns covered by that warranty constitutes an insurance transaction within the meaning of Article 13(B)(a) of the Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, and is for that reason exempt from value added tax.

¹ Original language: Polish.

² OJ 1977 L 145, p. 1.

³ Mapfre Warranty uses the term ‘warranty’ (French: garantie) to describe the service which it provides and I will also refer to it as such in this Opinion. However, it should be noted that this means a warranty in a broad sense as covering all mechanisms for protecting against loss of property (see Cornu, G., Vocabulaire juridique, 8th edition, PUF, Paris, 2009, p. 436). A distinction has to be drawn between a warranty construed thus and a contractual guarantee of quality provided by a seller to a purchaser or a warranty against defects. See in this regard also points 33 to 35 of this Opinion.

⁴ See, in particular, Stichting Uitvoering Financiële Acties, 348/87, EU:C:1989:246, paragraph 11, and Abbey National, C‑169/04, EU:C:2006:289, paragraph 38 and the case-law cited.

⁵ Proposal for a directive amending Directive 2006/112/EC on the common system of value added tax, as regards the treatment of insurance and financial services (COM(2007) 747 final). Directive 2006/112 replaced the Sixth Directive. The exemption corresponding to Article 13(B)(a) of the Sixth Directive is contained in Article 135(1)(a) of Directive 2006/112.

⁶ OJ 1973 L 228, p. 3.

⁷ In its judgment in CPP, C‑349/96, EU:C:1999:93, at paragraph 18, the Court, it is true, held that there is no reason for the interpretation of the term ‘insurance’ to differ according to whether it appears in the Sixth Directive or in Directive 73/239. However, that case concerned solely the scope of that term, that is to say, whether it covers, in addition to payments for indemnity, other forms of assistance for those sustaining loss, and not the definition thereof. In my view, the interpretation of the term ‘insurance transactions’, for the purpose of applying the provisions on VAT, need not necessarily be determined by the provisions governing the conduct of insurance activity since the purposes of those rules differ.

⁸ See the Opinion of Advocate General Fennelly in CPP, C‑349/96, EU:C:1998:281, point 26.

⁹ C‑224/11, EU:C:2013:15.

¹⁰ BGŻ Leasing, C‑224/11, EU:C:2013:15, paragraphs 58 and 59 and the case-law cited.

¹¹ BGŻ Leasing, C‑224/11, EU:C:2013:15, paragraphs 62 and 63.

¹² At this juncture I would like to point out that clearly a situation is theoretically possible in which a third party assumes, for a fixed amount, the obligations of the motor-vehicle dealer which arise from statute law or otherwise (for example, under a contract). Such transactions would have to be regarded as insurance transactions only if the seller of the motor vehicle, and not the purchaser, were insured. However, the transactions which form the subject-matter of the main proceedings do not constitute such transactions and the question referred for a preliminary ruling was not drawn up in that context.

¹³ See also, in this regard, points 39 to 42 of this Opinion.

¹⁴ BGŻ Leasing, C‑224/11, EU:C:2013:15, paragraphs 29 to 33 and the case-law cited.

¹⁵ BGŻ Leasing, C‑224/11, EU:C:2013:15, paragraph 36.