VAT: ECJ case-law to come on Independent Group of Persons regimes

The independent group of persons (“IGP”) EU regime¹  has been implemented into national laws in different ways, which has led to an incoherent application of the exemption among the Member States. With that respect, the IGP  EU regime will be further clarified in the near future since there are currently three pending cases before the ECJ:

The IGP EU regime has been implemented into national laws in different ways, which has led to an incoherent application of the exemption among the Member States. With that respect, the IGP  EU regime will be further clarified in the near future since there are currently three pending cases before the ECJ:

(1) In DNB Banka AS (C-326/15), the ECJ will have the opportunity to shape the personal scope of the IGP regime. In essence, the question is whether:

• the IGP has to be a separate legal person distinct from its members to qualify as taxable person for VAT purposes and therefore benefit from the exemption as long as it independently carries out an economic activity;
• the exemption is applicable in case expenses which are incurred by the IGP for the supply of services and reimbursed by its members, include an uplift (in fine a percentage of consideration).

(2) By contrast, Aviva (C-605/15) concerns the material and territorial scope of the IGP regime and raises the issue as to whether:

• a group of insurance companies can benefit from the IGP regime to the extent that their activities are deemed to be in the public interest;
• the exemption can be extended to services supplied by a cross-border group to its members established in other EU or non-EU countries or is restricted to members which are subject to the same domestic legal system as the IGP itself.

(3) Lastly, the European Commission has initiated an infringement procedure against Germany (C-616/15) which has restricted the scope of the IGP regime solely to the health sector as it considers that:

•  the rationale behind the exemption is to exclude activities that are not in the public interest; and
•  any extension to all sectors of the economy would give rise to distortions of competition.