5.12.2009

Official Journal of the European Union

C 297/10

(Case C-242/08)

(Sixth VAT Directive - Articles 9(2)(e), fifth indent, and 13B(a), (c) and (d)(2) and (3) - Insurance and reinsurance transactions - Concept - Transfer of a portfolio of life reinsurance contracts, for consideration, to a person established in a third country - Determination of the place of that transfer - Exemptions)

2009/C 297/09

Language of the case: German

Referring court

Parties to the main proceedings

Applicant: Swiss Re Germany Holding GmbH

Defendant: Finanzamt München für Körperschaften

Re:

Reference for a preliminary ruling — Bundesfinanzhof — Interpretation of the fifth indent of Article 9(2)(e) and Article 13B(a), (c) and (d)(2) and (3) 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 (OJ 1977 L 145, p.1) — Transfer, for remuneration payable by the purchaser established in a third country, of a portfolio of life insurance contracts authorised by the policyholders and involving the transfer of all the rights and obligations arising from the contracts transferred but not involving any transfer of other economic goods — Determination of the place of supply for tax purposes — Applicability to the abovementioned transaction of one of the exemptions contained in the abovementioned provisions of Article 13B of Directive 77/388/EEC

Operative part of the judgment

1.A transfer for consideration, by a company established in one Member State, to an insurance company established in a third State, of a portfolio of life reinsurance contracts, with the consequence that the transferee company assumes, with the consent of the insured persons, all the rights and obligations resulting from those contracts, does not constitute either a transaction falling under Article 9(2)(e), fifth indent, and Article 13B(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, or a transaction falling under a combination of Article 13B(d)(2) and (3) thereof.

2.In the context of a transfer for consideration of a portfolio of 195 life reinsurance contracts, the fact that it is not the transferee but the transferor who pays the consideration, in the present case the fixing of a negative value, for the acquisition of 18 of those contracts, does not affect the answer to the first question.

3.Article 13B(c) of Sixth Directive 77/388/EC must be interpreted as meaning that it does not apply to a transfer for consideration of a portfolio of life reinsurance contracts such as that at issue in the main proceedings.

(<span class="super">1</span>) OJ C 223, 30.8.2008.