taxud/2414/08 - European Commission - Europa

exemption of Article 13(B)(d)(3) and (5) of the 6 th Directive 7 the Court held in particular
in SDC that the transactions in question must be distinct in character in the sense of
forming a distinct whole and be specific to and essential for the exempt transactions. 8 In
the Abbey National Plc and Inscape Investment Fund case 9 , the ECJ decided that the
concept of ‘management of special investment funds’ referred to in Article 13(B)(d)(6)
of the 6 th Directive 10 covered the services performed by a third-party manager in respect
of the administrative management of the funds, if, viewed broadly, they form a distinct
whole, and are specific to, and essential for, the management of those funds. On the other
hand, in the same case the ECJ also decided that services corresponding to the functions
of a depositary, such as those set out in Articles 7(1) and (3) and 14(1) and (3) of Council
Directive 85/611/EEC of 20 December 1985 on the coordination of laws, regulations and
administrative provisions relating to undertakings for collective investment in
transferable securities (UCITS), were not covered by that concept. For some of the other
exempt financial services (such as the granting of credit) no case-law was available yet.
In WP 1 the Member States were against adopting an entirely new approach and in
favour of keeping useful and well-established jurisprudence, developing and refining it
further. However, this also meant that elder jurisprudence (particularly jurisprudence of
the ECJ in earlier cases, when the structure of that jurisprudence was less evolved and
less settled) had to be abandoned for creating the necessary evolution (In fact, the
philosophy adopted could be summarised as creating "evolution instead of revolution").
In a first step the raw concept of "related services" was developed. Based on the SDC
judgement and the Abbey National Plc and Inscape Investment Fund case "related
services" distinct in character and specific to and essential for the exempt transactions
were meant to be covered by the specific exemptions for insurance and financial
services. On the other hand mere material or technical supplies, which in accordance
with the above-mentioned jurisprudence were not covered by the exemption, had to be
excluded. The ECJ jurisprudence also made clear that it did not want to go into further
detail and that it is for the referring tribunal to establish whether the services in question
in the main proceedings meet those criteria. It was therefore at this point that the
legislator had to take the initiative and define which services are distinct in character and
specific to and essential for the exempt transactions and which other services represented
mere material or technical supplies. Against this background the modernised definitions
had to integrate the basic concept of the ECJ jurisprudence at the level of Council
Directive 112/2006/EC and then include in the implementing Regulation in a nonexhaustive
way services fulfilling the criteria for coming under the exemption and also
exclude services for which it could be established that they are mere material or technical
supplies.
7 Now Article 135 (1) (c) and (f) of Council Directive 2006/112/EEC
8
9
Case C-2/95 SDC [1997] ECR I-3017, paragraph 32, paragraphs 53, 66 and 73, and Case C-235/00
CSC Financial Services [2001] ECR I-10237, paragraphs 26 to 28.
Case C-169/04
10 Now Article 135 (1) (g) of Council Directive 2006/112/EEC
5