Keywords
Summary

Keywords

1. Tax provisions – Harmonisation of laws – Turnover taxes – Common system of value added tax – Exemptions provided for in the Sixth Directive

(Council Directive 77/388, Art. 13B(d)(6))

2. Tax provisions – Harmonisation of laws – Turnover taxes – Common system of value added tax – Exemptions provided for in the Sixth Directive

(Council Directive 77/388, Art. 13B(d)(6))

Summary

1. The concept of ‘management’ of special investment funds in Article 13B(d)(6) of Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes has its own independent meaning in Community law whose content the Member States may not alter.

While the English and Dutch versions of that provision are ambiguous as to whether it confers on the Member States the task of defining both the meaning of ‘special investment funds’ and that of ‘management’ of those funds, it is clear, particularly from the Danish, German, French and Italian versions, that that provision refers to the Member States’ definitions only as regards the first of those meanings. The limited scope of that reference to national law, as is clear from the versions mentioned, is supported by the context in which the expression occurs, by the scheme of the Sixth Directive and by the purpose of avoiding divergences in the application of the value-added tax system from one Member State to another.

(see paras 40-43, operative part 1)

2. Article 13B(d)(6) of Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes is to be interpreted as meaning that the concept of ‘management of special investment funds’ referred to in that provision covers 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, that provision does not cover the functions of depositary, such as those set out in Articles 7(1) and (3) and 14(1) and (3) of Directive 85/611 on the coordination of the laws, regulations and administrative provisions relating to undertakings for collective investment in transferable securities. Those functions do not fall under the management of undertakings for collective investment but under the control and supervision of their activities, the aim being to ensure that undertakings for collective investment are managed in accordance with the law.

However, since to be regarded as exempt transactions for the purposes of Article 13B(d)(6) of the Sixth Directive, services performed by a third-party manager in respect of the administrative management of the funds must, viewed broadly, form a distinct whole, fulfilling in effect the specific, essential functions of a service described in that same point 6, mere material or technical supplies, such as the making available of a system of information technology, are not covered by Article 13B(d)(6) of that directive.

(see paras 65, 70-71, 74, operative part 2)