30.1.2023

Official Journal of the European Union

C 35/28

(Case C-644/22)

(2023/C 35/33)

Language of the case: Dutch

Referring court

Parties to the main proceedings

Applicant: Stichting Bedrijfstakpensioensfonds voor het levensmiddelenbedrijf (BPFL)

Defendant: Inspecteur van de Belastingdienst Utrecht

Questions referred

1.Must Article 135(1)(g) of the VAT Directive (1) be interpreted as meaning that unit-holders in a pension fund such as the one at issue in the main proceedings can be regarded as bearing investment risk, and does this mean that the pension fund constitutes a ‘special investment fund’ within the meaning of that provision? Is it relevant in that regard:

—whether unit-holders bear an individual investment risk or is it sufficient that unit-holders as a collective — and no one else — bear the consequences of the investment results?

—what the magnitude of the collective or individual risk is?

—to what extent the amount of the pension benefit depends also on other factors, such as the number of years of pension accrual, salary level and the actuarial interest rate?

2.Does the principle of tax neutrality require that, for the application of Article 135(1)(g) of the VAT Directive, in the case of funds which are not UCITS, (2) it must be assessed not only whether they are comparable to UCITS but also whether, from the perspective of the average consumer, they are comparable to other funds that are not UCITS funds but are regarded by the Member State as special investment funds?

(1) Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1).

(2) Undertakings for collective investment in transferable securities.