The Advocate General’s Opinion in this case concerning the VAT liability of claims handling services has been released.
Aspiro provides claims handling services to an insurance company consisting of the full settlement of claims arising from insured events. Aspiro acts in the name and on behalf of the insurer and does not have a legal relationship with the insured. Aspiro provides a variety of services including the preparation and processing of damage reports, damage investigation and contacting the insured where necessary. After examining the collected documents, Aspiro decides on the settlement of the claim. Aspiro also provides other administrative and technical work in connection with these activities. The CJEU was asked whether such services fall within Article 135(1)(a) of the VAT Directive as insurance and reinsurance transactions, including related services performed by insurance brokers and insurance agents. The Opinion is not available in English but it is clear from the translation that the Advocate General (AG) was of the view that such services are not exempt.
The AG gave the following Opinion:
Insurance and reinsurance transactions – The AG recalled established case law that an insurance or reinsurance transaction requires that the party accepts risk in return for consideration and that there is a legal relationship between the insurer and the insured. The AG opined that these were not met in the current case.
Related services performed by insurance brokers or insurance agents - The AG confirms that claims handling services are related services and states that in order to qualify as an insurance broker or insurance agent it is required that the party (1) maintains the relationship with insurers and the insured and (2) performs the essential aspects of the work of an insurance agent, such as the finding of prospects and their introduction to the insurer. The AG opined that Aspiro meets the first condition but not the second. This is because Aspiro solely operates in the field of claims handling and does not pursue any activities that are aimed at the conclusion of insurance contracts.
Insurance Intermediaries Directive 77/92 and Insurance Mediation Directive 2002/92 – Some of the submissions made related to non tax related Directives. The AG was of the Opinion that whilst they refer to the management of insurance contracts in case of a claim in the description of the professional activities of insurance agents, this is limited to supporting activities which only relate to insurance contracts that are concluded with assistance of insurance professionals. The AG also questioned whether these two Directives can be decisive for the interpretation of the concepts of insurance broker and insurance intermediary for VAT purposes.
Fiscal neutrality – The taxpayer argued that the principle of fiscal neutrality entails that economic operators should be able to choose an organisational model that suits them best from an economic point of view without bearing the risk that their activities are excluded from the VAT exemption. The AG opined that the argument of organisational freedom can only play a role as far as the outsourced activity is also subject to the VAT exemption. In this case this condition is not fulfilled as the claims handling services are excluded from the VAT exemption of Article 135(1)(a).
In light of the above the AG proposes that the Court responds that the settlement of claims arising from insured events in the name and on behalf of an insurer provided by a third party that does not have a legal relationship with the insured and does not pursue any activities that are aimed at the conclusion of insurance contracts, is not covered by the VAT exemption of Article 135(1)(a).
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