“1. An authorization shall be valid for the entire national territory unless, and in so far as national laws permit, the applicant seeks permission to carry on his business only in a part of the national territory. 2. Authorization shall be given for a particular class of insurance. The classification by class appears in the Annex. Authorization shall cover the entire class unless the applicant wishes to cover only part of the risks pertaining to such class. The supervisory authorities may restrict an authorization requested for one of the classes to the operations set out in the scheme of operations referred to in Articles 9 and 11. 3. Each Member State may grant an authorization for two or more of the classes, where its national laws permit such classes to be carried on simultaneously.”
“The following operations, where they are on a contractual basis, in so far as they are subject to supervision by the administrative authorities responsible for the supervision of private insurance and are authorized in the country concerned”
“(a) tontines whereby associations of subscribers are set up with a view to jointly capitalizing their contributions and subsequently distributing the assets thus accumulated among the survivors or among the beneficiaries of the deceased;” “(c) management of group pension funds, i.e. operations consisting, for the undertaking concerned, in managing the investments, and in particular the assets representing the reserves of bodies that effect payments on death or survival or in the event of discontinuance or curtailment of activity;”
“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: (a) insurance and reinsurance transactions, including related services performed by insurance brokers and insurance agents; …”
“The provision of insurance and reinsurance by authorised insurers within the meaning of sections 2 to 9 of theInsurance Companies Act 1974 ”
“The provision of insurance and re-insurance by (a) persons permitted, in accordance withsection 2 of the Insurance Companies Act 1981 , to carry on insurance business…”
“Subject to the following provisions of this section, no person shall carry on any insurance business in the United Kingdom unless authorised to do so under section 3 or 4 below.” ii) Section 3(1) ICA 1981 provided that: “The Secretary of State may authorise a body to carry on in the United Kingdom such of the classes of insurance business specified in Schedule 1 or 2 to this Act, or such parts of those classes, as may be specified in the authorisation.” iii) Thus, authorisation qua insurer was only required in respect of entities providing “classes of insurance” as specified in the Schedules. Specifically, Schedule 1 ICA 1981 expressly listed as a class of insurance business Class VII “Pension fund management” described as: “Effecting and carrying out – (a) contracts to manage the investments of pension funds, or (b) contracts of the kind mentioned in paragraph (a) above that are combined with contracts of insurance covering either conservation of capital or payment of a minimum interest.”
“1. Insurance transactions and reinsurance transactions”
“Life assurance, that is to say, the branch of insurance which comprises, in particular, assurance on survival to a stipulated age only, assurance on death only, assurance on survival to a stipulated age or an earlier death, life assurance with return of premiums, tontines, marriage assurance, and birth assurance”
“The essentials of an insurance transaction are, as generally understood, that one party, the insurer, undertakes to indemnify another, the insured, against the risk of loss (including liability for losses for which the insured may become liable to a third party) in consideration of the payment of a sum of money called a premium: it is the giving of the indemnity that constitutes the insurance and, thus, the supply of the service.”
“… 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, in the event of materialisation of the risk covered, with the service agreed when the contract was concluded.”
“18. It is not essential that the service the insurer has undertaken to provide in the event of loss consists in the payment of a sum of money, as that service may also take the form of the provision of assistance in cash or in kind of the types listed in the annex to Directive 73/239 as amended by Directive 84/641. There is no reason for the interpretation of the term "insurance" to differ according to whether it appears in the Directive on insurance or in the Sixth Directive.”
“… It procures for those customers, for payment, in its own name and on its own account, to the extent of the services mentioned in the Continental policy, insurance cover by having recourse to an insurer. Consequently, for the purposes of VAT, there is a supply of services between Continental and CPP on the one hand, and between CPP and its customers on the other, and the fact that Continental under the terms of its contract with CPP provides insurance cover directly to CPP’s customers is not material in this respect.”
“Livbolaget is engaged in the business of life assurance, in particular, in the sector of capital insurance and insurance provision for old-age. Livbolaget and Skandia have studied the possibility of merging (in the broad sense) their insurance activities within a single company. One plan was to transfer Livbolaget's staff and operations to Skandia so that, in effect, Skandia would be conducting all Livbolaget's business, whether this consisted in the sale of insurance, the settlement of claims, the calculation of actuarial forecasts or capital management. In return, Skandia would receive from Livbolaget remuneration at market rates. Skandia would assume no liability in respect of those insurance activities. All risks would devolve wholly upon Livbolaget which would preserve its status of insurer for the purposes of Swedish civil law.”
“… it is true that, in paragraph 18 of its judgment in [CPP] the court held that there is no reason for the interpretation of the term “insurance” to differ according to whether it appears in the Directives on insurance or in the Sixth Directive.”
“…the fact that an insurance company must not engage in business other than insurance business or operations arising directly therefrom does not mean that all the transactions carried out by that company constitute, for tax purposes, insurance transactions in the strict sense, as referred to in article 13(B)(a) of the Sixth Directive.”
“… 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, in the event of materialisation of the risk covered, with the service agreed when the contract was concluded.”
“40 However, it is clear that no such legal relationship would exist between Skandia and Livbolaget's clients in the context of the scheme postulated by the two companies in the main proceedings. Skandia would have no contractual relationship with persons insured with Livbolaget and would assume no liability in respect of the insurance business carried out, since all risks would devolve wholly on Livbolaget which would preserve its status of insurer for the purposes of Swedish civil law. 41 According to the definition of insurance transactions set out in paragraph 17 of the judgment in [CPP] and cited in paragraph 37 of this judgment, it appears that the identity of the person supplied with the service is relevant for the purposes of the definition of the type of services covered by article 13(B)(a) of the Sixth Directive and 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, namely the insured.”
“However, in the present case, a provider of services such as Aspiro does not itself undertake to ensure that the insured person is covered in respect of a risk and is not connected in any way to the insured person through a contractual relationship.”
“A financial arrangement under which subscribers to a loan each receive for life an annuity, which increases as other subscribers die, so that ultimately the last survivor receives for whatever is left of his life an annuity amounting in the aggregate to the total of the original annuities. Lorenzo Tonti, an Italian, invented this kind of security in the 17th century, when the governments of Europe had some difficulty in raising money in consequence of the wars of Louis XIV, who first adopted the plan in France. The system was used on several occasions during the 18th century by the British Government. The last Act passed for the purpose was the statute 1789, 29 Geo. 3, c.41, entitled an Act for raising a certain sum of money, by way of annuities, to be attended with the benefit of survivorship, in classes.”
“This treatment arises from the UK’s original application of the insurance exemption to all of an insurer’s regulated insurance activities, including management of pension funds”
“…it has been held that, if the final consumer is able, on the basis of national law, to obtain reimbursement through the taxable person of the amount of the charge passed on to him, that taxable person must in turn be able to obtain reimbursement from the national authorities (see Comateb, para 24) …”
“47 Moreover, it must be stated that the right to deduct can be exercised only in respect of taxes actually due, that is to say, the taxes corresponding to a transaction subject to VAT or paid in so far as they were due (see, to that effect, judgment of6 February 2014 , Fatorie, C-424/12, EU:C:2014:50, paragraph 39). As it happens, the VAT paid by Mr Farkas to the seller of the mobile hangar at issue in the main proceedings was not due. 48 Thus, since the VAT was not due and the payment was made in breach of a substantive requirement of the reverse charge regime, Mr Farkas cannot claim the right to deduct that VAT. 50. However, Mr Farkas may claim reimbursement of the tax unduly paid to the seller of the mobile hangar in accordance with national law (see, to that effect, judgment of6 February 2014 , Fatorie, C-424/12, EU:C:2014:50, paragraph 42).”
“1. In relation to transactions carried out between1 January 1978 and30 June 1978 and transactions carried out in 1979, may the provision contained in Article 13(B)(d)(1) of [the 6th Directive] concerning the exemption from turnover tax of transactions consisting of the negotiation of credit be relied upon, in the absence of the implementation of that directive, by a credit negotiator if he did not pass that tax on to the persons receiving his services? 2. If Question 1 is answered in the affirmative, must the credit negotiator pay turnover tax if he “covertly” passed on the tax, or only if he “overtly” passed it on? 3. If turnover tax is also payable where the tax is passed on covertly, is it sufficient, for there to have been a covert passing on of turnover tax, that the credit negotiator, in agreeing his commission, expected that out of it he would have to pay turnover tax?”
“Thus, wherever the provisions of a directive appear, as far as their subject matter is concerned, to be unconditional and sufficiently precise, those provisions may, in the absence of implementing measures adopted within the prescribed period, be relied upon as against any national provision which is incompatible with the directive or in so far as the provisions define rights which individuals are able to assert against the State.”
“1. In relation to transactions carried out between1 January 1978 and30 June 1978 and transactions carried out in 1979, may the provision contained in Article 13(B)(d)(1) of [the 6th Directive] concerning the exemption from turnover tax of transactions consisting of the negotiation of credit be relied upon, in the absence of the implementation of that directive, by a credit negotiator if he did not pass that tax on to the persons receiving his services? 2. If Question 1 is answered in the affirmative, must the credit negotiator pay turnover tax if he “covertly” passed on the tax, or only if he “overtly” passed it on? 3. If turnover tax is also payable where the tax is passed on covertly, is it sufficient, for there to have been a covert passing on of turnover tax, that the credit negotiator, in agreeing his commission, expected that out of it he would have to pay turnover tax?”
“… Lord Steyn's four questions are no more than broad headings for ease of exposition. They are intended to ensure a structured approach to the analysis of unjust enrichment, by identifying the essential elements in broad terms. If they are not separately considered and answered, there is a risk that courts will resort to an unstructured approach driven by perceptions of fairness, with consequent uncertainty and unpredictability. At the same time, the questions are not themselves legal tests, but are signposts towards areas of inquiry involving a number of distinct legal requirements. In particular, the words “at the expense of” do not express a legal test; and a test cannot be derived by exegesis of those words, as if they were the words of a statute.”
“30. The commissioners were not, therefore, enriched by the managers' retention of the notional£25 , and the managers have, in principle, no defence to a claim by the lead claimants for the restitution of that amount. That conclusion is as one would expect. The lead claimants' claim to restitution against the commissioners proceeds on the basis that the supplies which they received from the managers were exempt from VAT. That being so, it would be surprising if they could present that claim, in relation to the measure of restitution, on a basis which was predicated on the supplies being taxable. 31. It follows that the commissioners' enrichment was only to the extent of the notional£75 .”
“42. The structured approach provided by the four questions [Lord Steyn’s questions] does not, therefore, dispense with the necessity for a careful legal analysis of individual cases. In carrying out that analysis, it is important to have at the forefront of one's mind the purpose of the law of unjust enrichment … it is designed to correct normatively defective transfers of value, usually by restoring the parties to their pre-transfer positions. It reflects an Aristotelian conception of justice as the restoration of a balance or equilibrium which has been disrupted. That is why restitution is usually the appropriate remedy. 43. The nature of the various legal requirements indicated by the “at the expense of” question follows from that principle of corrective justice. They are designed to ensure that there has been a transfer of value, of a kind which may have been normatively defective: that is to say, defective in a way which is recognised by the law of unjust enrichment (for example, because of a failure of the basis on which the benefit was conferred). The expression “transfer of value” is, however, also too general to serve as a legal test. More precisely, it means in the first place that the defendant has received a benefit from the claimant. But that is not in itself enough. The reversal of unjust enrichment, usually by a restitutionary remedy, is premised on the claimant's also having suffered a loss through his provision of the benefit.”
“71. Returning, then, to the question whether the unjust enrichment of the commissioners was at the expense of the lead claimants, and focusing on whether there was a transfer of value from the lead claimants to the commissioners, the answer is in the negative. There was a transfer of value, comprising the notional£100 , from the lead claimants to the managers, under the contract between them. It was defective, because it was made in performance of a contractual obligation which was mistakenly believed to be owed. There was a subsequent transfer of value, comprising the notional£75 , from the managers to the commissioners. It was also defective, because it was made in compliance with a statutory obligation which was inapplicable because it was incompatible with European Union law. These two transfers cannot be collapsed into a single transfer of value from the lead claimants to the commissioners.”
“81. … [The statutory provisions] create a scheme which enables consumers who have been wrongly charged VAT to obtain reimbursement. The consumers are able to recover the VAT which they were wrongly charged, to the extent that it was remitted by the supplier to the commissioners, through the medium of the supplier's claim under section 80. 82. Although the consumers' remedy is indirect, it can generally be expected to be effective: if the supplier is otherwise reluctant to make a claim, the consumers have a direct claim against him, as explained below. Subject to the question of time bar, these arrangements therefore remove any need there might otherwise be, in most circumstances, for the consumer to have a direct remedy against the commissioners. It will be necessary at a later point to return to the question whether there may nevertheless be some circumstances in which a direct remedy is required by European Union law.”
“More fundamentally, the determining factor in the present case is that the scheme created by section 80 is inconsistent with the existence of a concurrent non-statutory liability on the part of the commissioners to make restitution to consumers. In the absence of section 80(7), one would therefore conclude that section 80 impliedly excluded such liability (assuming that it might otherwise exist). Given the existence of an express exclusion in section 80(7) which is capable of covering such liability, it is unnecessary to rely on implication: one can construe section 80(7) as having the same exclusionary effect.”
“93. In the present case, the lead claimants had a common law right to restitution of the amounts mistakenly paid to the managers, whose enforcement was neither impossible nor excessively difficult. The managers had a statutory right to recover the notional£75 from the commissioners, under arrangements which ensured that it was passed on to the lead claimants. The managers retained the remaining£25 and were not insolvent. They were therefore in a position to refund it to the lead claimants. The only amounts which the lead claimants could not recover were the amounts which they had paid during the “dead periods”, to the extent that those amounts had been paid by the managers to the commissioners: that is to say, the notional£75 whose recovery from the commissioners was time-barred under section 80(4) of the 1994 Act. Although a claim by the lead claimants against the managers in respect of the dead periods would not have been time-barred, because of the more generous limitation period allowed bysection 32(1)(c) of the Limitation Act 1980 , the managers would have a defence of change of position, since the amounts which they paid to the commissioners during those periods were irrecoverable. The inability of the lead claimants to recover those sums is not, however, incompatible with European Union law: as explained earlier, it is conceded that the three year limitation period imposed by section 80(4) of the 1994 Act is compatible with European Union law.” 94. In these circumstances, the inability of the lead claimants to pursue a direct claim for restitution against the commissioners is not incompatible with European Union law. That follows from the application of well-established principles of European Union law. There is therefore no need for any reference to the Court of Justice. Nor is it necessary or appropriate to consider what the position would be in a hypothetical case where the supplier was insolvent: the court has heard no submissions, and has no information before it, as to how reimbursement arrangements under section 80 might operate in that situation.”
“42. So far as the second point is concerned, article 4.5 [6VD] may indeed be difficult to understand or to apply. I express no view one way or the other. But the fact that a piece of European legislation is difficult to understand or apply cannot justify an extension of the limitation period. If the meaning of a piece of European legislation is unclear it can be referred to the CJEU which sometimes manages to clarify its meaning. If and in so far as there was a perceived problem it arose because of uncertainties about the law, and had nothing to do with any shortcomings in domestic procedure for claims for repayment of VAT.”