ECJ C-640/22 (Fiscale Eenheid Achmea) – Questions – Does the exemption for the management of mutual funds apply to a pension fund?

On October 12, 2022, the ECJ received a request for preliminary ruling from the Netherlands (Case ECJ C-640/22 (Fiscale Eenheid Achmea)).

Context:

Article in the EU VAT Directive

Article 135(1)(g) of Council Directive 112/2006/EC

Article 135
1. Member States shall exempt the following transactions:

(g) the management of special investment funds as defined by Member States;

Facts

The facts at issue in this case are essentially the same as those at issue in Case C644/22, with the exception that the defendant in this case provided services to a pension fund, which since 1 January 2018 no longer has active accrual.

Questions

The questions referred for a preliminary ruling are almost identical to those in the above case, the only difference being that under question (1), there is a fourth indent that reads as follows:
[…] […] Is it relevant here:
[…] – That the pension fund has no active accrual from 1 January 2018 and is obliged to proceed with a collective value transfer to an insurer or another pension fund because of the low policy coverage ratio]?

Question in ECJ C-644/22

1) Must Article 135(1)(g) of the VAT Directive be interpreted as meaning that unit-holders in a pension fund such as the one at issue in the main proceedings can be regarded as bearing investment risk, and does this mean that the pension fund constitutes a ‘special investment fund’ within the meaning of that provision? Is it relevant in that regard:
– whether unit-holders bear an individual investment risk or is it sufficient that unit-holders as a collective – and no one else – bear the consequences of the investment results?
– what the magnitude of the collective or individual risk is?
– to what extent the amount of the pension benefit depends also on other factors, such as the number of years of pension accrual, salary level and the actuarial interest rate?

AG Opinion

Decision

Summary

Source