Keywords
Summary

Keywords

1. Freedom to provide services - Direct insurance other than life assurance - Directive 88/357 - Establishment of an insurance company for the purposes of Article 2(c) of the Directive - Definition - Subsidiary - Excluded

(Council Directive 88/357, Arts 2(c) and 3)

2. Freedom to provide services - Direct insurance other than life assurance - Directive 88/357 - Member State where the risk is situated - Establishment of the policy-holder for the purposes of Article 2(d) of the Directive - Definition - Scope

(Council Directive 88/357, Art. 2(d), final indent)

3. Freedom to provide services - Direct insurance other than life assurance - Directive 88/357 - Tax on insurance premiums - Member State levying insurance tax on a legal person established in another Member State in respect of premiums which that legal person has paid to an insurer, also established in another Member State, to cover the business risks of its subsidiary or sub-subsidiary established in the Member State making the levy

(Council Directive 88/357, Arts 2(c) and (d), 3 and 25)

4. Freedom to provide services - Direct insurance other than life assurance - Directive 88/357 - Definitions of policy-holder and Member State in which the risk is situated for the purposes of Article 2(d) of the Directive - Interpretation - Internal arrangements within a group of companies as regards invoicing and payment - No effect

(Council Directive 88/357, Art. 2(d), final indent)

Summary

1. Article 2(c) of the Second Directive 88/357 on the coordination of laws, regulations and administrative provisions relating to direct insurance other than life assurance and laying down provisions to facilitate the effective exercise of freedom to provide services and amending Directive 73/239, which defines establishment as the head office, agency or branch of an undertaking, relates to the establishment of an insurance company.

Although Article 3 of the Directive must be interpreted as extending the concept of agency or branch in Article 2(c) of the Directive so that it applies in the broadest sense, whatever the formal term used, it cannot, however, be inferred that a subsidiary constitutes a form of permanent presence which must be treated in the same way as an agency or branch and therefore be regarded as an establishment within the meaning of Article 2(c) of the Directive.

( see paras 32, 35, 39 )

2. The term establishment, which is used in Article 2(c) of the Second Directive 88/357 on the coordination of laws, regulations and administrative provisions relating to direct insurance other than life assurance and laying down provisions to facilitate the effective exercise of freedom to provide services and amending Directive 73/239, must be interpreted as covering all companies linked to each other within a group where one of those companies takes out an insurance policy covering other companies in the group.

( see paras 42, 56 )

3. Articles 2(c) and (d), final indent, and 3 of the Second Directive 88/357 on the coordination of laws, regulations and administrative provisions relating to direct insurance other than life assurance and laying down provisions to facilitate the effective exercise of freedom to provide services and amending Directive 73/239 permit a Member State to levy insurance tax on a legal person established in another Member State in respect of premiums which that legal person has paid to an insurer, also established in other Member State, to cover the business risks of its subsidiary or sub-subsidiary established in the Member State making the levy. It makes no difference if the legal person which paid the premiums and the legal person whose business risks are covered are two companies in the same group linked by a relationship other than that of parent and subsidiary company.

( see para. 57 and operative part 1 )

4. In interpreting policy-holder or Member State in which the risk is situated for the purposes of Article 2(d), final indent, of the Second Directive 88/357 on the coordination of laws, regulations and administrative provisions relating to direct insurance other than life assurance and laying down provisions to facilitate the effective exercise of freedom to provide services and amending Directive 73/239, the way in which the premium relating to the risk insured is invoiced or paid within a group of companies is immaterial. Subjective criteria such as internal arrangements within a group of companies as regards invoicing and payment cannot affect the determination of the Member State where the risk is situated nor, therefore, of the Member State which is competent to tax the insurance transaction, because they could lead to tax evasion.

( see paras 59-60 and operative part 2 )