United Kingdom House of Lords Decisions

OPINIONS

OF THE LORDS OF APPEAL

FOR JUDGMENT IN THE CAUSE

C R Smith Glaziers (Dunfermline) Limited (Appellants)

v.

Commissioners of Customs and Excise (Respondents) (Scotland)

ON

THURSDAY 20 FEBRUARY 2003

The Appellate Committee comprised:

  Lord Hoffmann

  Lord Slynn of Hadley

  Lord Woolf

  Lord Hope of Craighead

Lord Walker

HOUSE OF LORDS

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

LORD HOFFMANN

My Lords,

    1. The question in this appeal is whether a supplier of insurance and related services should be denied the exemption from VAT required by article 13B(a) of the EC Sixth Directive of 17 May 1977 on turnover taxes (77/388/EEC) on the ground that it failed to comply with a formal requirement prescribed by United Kingdom law.

    2. CR Smith Glaziers (Dunfermline) Ltd ("the taxpayer") supplies double glazing. It gives a 10 year guarantee supported by an insurance policy (arranged by a broker with an established insurance company) to protect the customer against the risk of its insolvency. The charge to the customer consists of the price of the double glazing and additional charges for the insurance premium and services provided in arranging and administering the policy. There is no dispute that the supply of these additional services is prima facie exempt from VAT.

    3. Section 38 of the Finance Act 1997, which came into force on 19 March 1997, prescribed new conditions for the exemption of UK suppliers of insurance and related services. It substituted the following provisions in Group 2 of Schedule 9 to the Value Added Tax Act 1994:

"Item No

1.  The provision of insurance or reinsurance by a person who provides it in the course of -

(a)  any insurance business which he is authorised under section 3 or 4 of the Insurance Companies Act 1982 to carry on, or

(b)  any business in respect of which he is exempted under section 2 of that Act from the requirement to be so authorised. . . .

4.  The provision by an insurance broker or insurance agent of any of the services of an insurance intermediary in a case in which those services -

(a)  are related (whether or not a contract of insurance or reinsurance is finally concluded) to any such provision of insurance or reinsurance as falls, or would fall, within item 1, 2 or 3; and

(b)  are provided by that broker or agent in the course of his acting in an intermediary capacity.

Notes:…

(3)  Where -

(a)  a person ('the supplier') makes a supply of goods or services to another ('the customer'),

(b)  the supply of the goods or services is a taxable supply and is not a zero-rated supply,

(c)  a transaction under which insurance is to be or may be arranged for the customer is entered into in connection with the supply of the goods or services,

(d)  a supply of services which are related (whether or not a contract of insurance is finally concluded) to the provision of insurance in pursuance of that transaction is made by - (i) the person by whom the supply of the goods or services is made, …and

(e)  the related services do not consist in the handling of claims under the contract for that insurance,

those related services do not fall within item 4 unless the relevant requirements are fulfilled.

(4)  For the purposes of Note (3) the relevant requirements are -

(a)  that a document containing the statements specified in Note (5) is prepared;

(b)  that the matters that must be stated in the document have been disclosed to the customer at or before the time when the transaction mentioned in Note (3)(c) is entered into; and

(c)  that there is compliance with all such requirements (if any) as to -

(i)  the preparation and form of the document,

(ii)  the manner of disclosing to the customer the matters that must be stated in the document, and

(iii) the delivery of a copy of the document to the customer,

as may be set out in a notice that has been published by the Commissioners and not withdrawn.

(5)  The statements referred to in Note (4 ) are -

(a)  a statement setting out the amount of the premium under any contract of insurance that is to be or may be entered into in pursuance of the transaction in question; and

(b)  a statement setting out every amount that the customer is, is to be or has been required to pay, otherwise than by way of such premium, in connection with that transaction or anything that is to be, may be or has been done in pursuance of that transaction."

    4. It is not disputed that the insurance-related services supplied by the taxpayer fell within Note (3). They were related to the supply of taxable double glazing. It was accordingly necessary to satisfy the relevant requirements as specified in Note (4). This means that a document containing the "statements" specified in Note (5) has been prepared and that the matters required to be stated have been "disclosed to the customer" at or before the time when the transaction was entered into. No relevant requirements as to the preparation and form of the document or manner of disclosure have been specified pursuant to the power in Note (4)(c).

    5. The question in this appeal is whether the Note (4) requirements were satisfied by the taxpayer during the period from the date when they came into force, 19 March 1997 until 31 December 1997. I must describe the taxpayer's standard form of contract during the relevant period. On its face, it is headed by the word "Contract" in large letters. Most of the front page consists of boxes giving various options as to the size, form, materials, finishes and so forth of the windows. By reference to these boxes the salesman can look up the prices in his book and calculate the total due. At the bottom of the front page is a box for (among other things) the "Total Contract Price (ex VAT)", the VAT and the "Total Contract Price (inc VAT)". It must be assumed that these items were ordinarily filled in. Next to the box is a notice which says:

"Once signed this will be a legally binding document.

Sign it only if you have read the whole of this page and the conditions printed overleaf and agree to be legally bound by them."

    6. The front page contains no reference to insurance or the premium or any charge for insurance-related services. The back, however, contains a good deal of small print. There is a section headed "Practical Matters - what is included and what is not/who does what". This is followed by seven clauses (divided into sub-clauses) under the heading "Standard Conditions - sale/fitting of the products". Clause 3 is headed "Price/Payment terms" and clause 3.4 says:

"Where the total contract price is £1000 or more the installation is insurance backed and the premium of £16 is included in the total contract price."

    7. Clause 6 is headed "Guarantee". Clause 6.3 says:

"In support of the guarantee CR Smith have in place dedicated resources on product services and customer support. In addition, where the total contract price is £1000 or more, an insurance policy is in place and incorporated in the total contract price are costs incurred for the making and arranging of the policy with the necessary support and administration of 10%. An insurance certificate will be issued to the customer once the total contract price has been paid in full."

    8. Clause 1 contains various definitions, including a definition of "contract price", which is said to mean: "The total contract price shown overleaf, or, where the context so requires, the contract price as amended in accordance with these conditions." In fact, when one looks at the box overleaf, it contains two figures for "total contract price"; one "(ex VAT)" and one "(inc VAT)". But a reading of the standard conditions shows that "contract price" or "total contract price" is consistently used to mean the figure inclusive of VAT, that is to say, the amount which the customer actually has to pay, see, for example, clause 6.1: "the…guarantee will be enforceable provided the contract price and any other sums due in terms of the contract have been paid." Likewise in clause 6.3 itself, the reference to issuing an insurance certificate "once the total contract price has been paid in full" must mean payment of whatever the customer has to pay.

    9. The question then is whether the contractual document contains the "statements" required by Note (5). There is no dispute that it states the amount of the premium, which is specified in clause 3.4 as £16. But the Commissioners say that it does not contain a statement "setting out every amount that the customer is…required to pay otherwise than by way of such premium". The reference to "10%" in clause 6.3 is in their submission inadequate.

    10. No one would claim that clause 6.3 was elegantly drafted. It refers to "10%" but does not say of what. However, the only candidate for being the principal sum is the "total contract price", so it must mean 10% of that. Then, as I have already commented, there is a potential ambiguity about whether this means inclusive or exclusive of VAT. Again, for the reasons I have given, resort to the last words of the clause, together with other references in the document, indicate that the price inclusive of VAT was intended. Even once these textual problems have been resolved, the calculation is, as the Tribunal said "not as straightforward as it looks." It did not expand upon this observation but I think it meant that as the sum allocated to the charge for insurance services would be exempt from VAT, there could be some circularity in trying to calculate it as a percentage of the price including VAT. The Tribunal stated, however, that they were "satisfied that the amount could be ascertained from the written terms of the contract". This may have been generous to the taxpayer but was not questioned by the Extra Division on appeal.

    11. But that, in the opinion of the Tribunal, was not enough. A statement "setting out the amount" meant a specific sum such as "£500". What clause 6.3 provided was a "formula", which was not a statement of the amount but a means by which the amount could be ascertained or calculated.

    12. The Extra Division of the Court of Session (Lord Kirkwood, Lord Cameron of Lochbroom and Lord Abernethy) agreed: 2001 SC 646. The court said, at p 652, that "amount" meant a "specific monetary figure":

"the setting out of a calculation, even a simple calculation, by which the customer can ascertain the exact sum which he has to pay is not sufficient compliance with the provision in question, although we appreciate that in the particular circumstances of this case there is no practical difference between the monetary figure and 10% of the total contract price."

    13. It seems to me that the question is whether Note (5) means only that the document must successfully communicate to the reader what amount or amounts he has to pay for insurance-related services or whether the information must be communicated in a particular form. A document which says in clause 1: "Amount to be paid: £500" successfully communicates to me that I have to pay £500. So does a document which says in clause 1 that I have to pay half the principal sum specified in clause 2 and says in clause 2: "Principal sum: £1,000". But the form of communication is different. In the first case it is self-contained and uses only conventional numerical symbols. In the second it is referential and uses a simple arithmetical concept, namely division.

    14. Looking at the matter as an ordinary question of construction, which requires one to consider the language against the background of the whole statutory scheme, I think that the arguments are finely balanced. The arguments on the one side are clearly stated in the views of the Tribunal and the Extra Division. They are not capable of great elaboration: that is what they thought the words meant. But there are arguments on the other side as well. Note (4)(c) gives the Commissioners a specific power to prescribe the form of the document by notice. It would have been open to them to say that the amount which has to be paid should appear in a box in a particular position on the front of the document in words or figures of a certain size. These are the kind of provisions one finds in consumer protection legislation. For example, the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) prescribes the form and content of regulated consumer credit agreements. Article 2 and Schedule 1 require that such agreements contain specified information. Paragraph 13 of the Schedule says that they shall contain information as to the amount of each repayment—

"expressed as—

(a)  a sum of money;

(b)  a specified proportion of a specified amount (including the amount outstanding from time to time);

(c)  a combination of heads (a) and (b) above; or

(d)  in a case where the amount of any repayment cannot be expressed in accordance with head (a), (b) or (c) above, a statement indicating the manner in which the amount will be determined."

    15. Such provisions plainly address the form in which the information must be expressed and one might likewise have expected these matters to be prescribed by notice under Note (4)(c). This suggests that Note (5) is concerned to identify the information which the document must disclose rather than to specify any form of language or typography.

    16. In fact, in the present case there are no other formal requirements whatever. There is no objection to the information being tucked away anywhere in the small print at the back of the form. If this is allowed, it would seem capriciously fastidious for Parliament to insist that the information must be communicated in self-contained form and without requiring the reader to have any knowledge of arithmetic. Despite the warning to the customer on the front that he should read the whole form (a warning which is not mandatory), I rather doubt whether insistence on a self-contained figure would in itself contribute much to the ensuring, as the Extra Division put it, at p 652, that "the customer knows exactly what amount he is paying in relation to the provision of insurance services".

    17. These considerations raise the question of what purpose Note (5) is intended to serve. If that can be identified, it may help one to choose the meaning best calculated to advance the statutory purpose. Mr Paines QC, who appeared for the Commissioners, said that it was intended to prevent what is known in VAT circles as "value shifting". VAT is ordinarily charged not upon the market value of the goods or services supplied but upon the consideration agreed by the parties. It is open to the parties to agree on whatever consideration they like and provided that truly reflects what is actually paid, it is not open to challenge by the Commissioners. But when a supply of taxable goods is combined with a supply of exempt services in a single package, particularly to a consumer, there is a temptation for both parties to agree on an inflated price for the exempt services and a correspondingly lower price for the taxable goods. This is called value shifting. It suits the supplier because he gains a competitive advantage from being able to reduce his total price. It naturally suits the consumer to pay less. The only losers are the Commissioners.

    18. If, therefore, the construction put forward by the Commissioners was better calculated to prevent value shifting, that would be a powerful argument in its favour. But I have great difficulty in seeing how it does. In fact Mr Paines did not suggest that a provision requiring the contract to specify the amount charged for exempt services, even in the boldest type and most prominent position, could in itself do anything to prevent value shifting. The parties could still agree on whatever apportionment they liked. They would not be doing anything unlawful. There was no reason why they should be inhibited from value shifting by having to say what the apportionment was.

    19. Mr Paines said however that, while the Notes could not prevent value shifting, they could help to discourage it. If the customer saw what appeared to be an excessive charge for insurance-related services plainly stated in the document, he might go and see whether he could get them more cheaply elsewhere. But there is more than one difficulty about this argument. The first is that the customer is not free to say that he will take the seller's double glazing but wishes to shop around for insurance. The taxpayer is not willing to contract on such terms. He is selling a single package which includes both double glazing and insurance. In practice this is inevitable because the insurance is against the taxpayer becoming insolvent and such insurance is unlikely to be obtainable without the taxpayer's co-operation. So the figure which will interest the customer is not the charge for insurance but the total contract price.

    20. In response to this obvious difficulty, Mr Paines puts the argument in a weaker form, namely that an excessive charge for insurance will irritate the customer and make it more likely that he will try to find a lower overall price from another supplier. But this is also unlikely to discourage value shifting. On the contrary, if suppliers are competing on overall price, they will each want to do as much value shifting as possible, since it will enable them to charge lower overall prices inclusive of VAT.

    21. It therefore seems to me that any effect which the Notes may have upon value shifting is speculative in the extreme. On the other hand, they are entirely suitable for achieving a more modest objective, which is to require the supplier to commit himself at the time of the contract to an allocation of the consideration, whatever it may be, by which he will afterwards be bound. That will prevent him from avoiding or evading VAT by subsequent retrospective adjustments. But for this purpose, all that its necessary is that the allocation should be unequivocally stated in the document. It need not be stated in any particular form.

    22. It is interesting to note that the Commissioners in their Insurance Notice 701/36 of 1997, Appendix B summarise the effect of Note (5) by saying: "In order to treat a supply of arranging insurance as exempt, an intermediary is required to disclose the premium as well as any fee charged over and above that premium." This sounds like a requirement that information be disclosed without insistence on any particular form.

    23. My Lords, for these reasons I think that even if one approaches the matter as a matter of construction of a domestic statute, the answer would not necessarily be that adopted by the Tribunal and the Extra Division. But what to my mind decisively tilts the balance against the Commissioners' construction is the European dimension. As I said at the beginning of this speech, the exemption of insurance-related services from VAT is a mandatory requirement of article 13B(a) of the EC Sixth Directive. A domestic rule which denies exemption to insurance-related services (as on the facts of this case Notes (3) to (5) admittedly do) is prima facie contrary to Community law. The only way in which, conformably with the Directive, the United Kingdom can justify rules which deprive such services of exemption is by reliance on the provision of article 13B that exemption shall be under conditions which member states shall lay down—

"for the purpose of ensuring the correct and straightforward application of the exemptions and of preventing any possible evasion, avoidance or abuse."

    24. Mr Paines says that avoidance by value shifting is a form of avoidance or abuse which the United Kingdom is entitled to prevent. He has the support of some remarks of Advocate General Jacobs in Muys' en De Winter's Bouw-en Aannemingsbedrijf BV v Staatssecretaris van Financiën (Case C-281/91) [1997] STC 665, 676, para 12. The Advocate General said that conditions which required a credit transaction to be "clearly dissociable" from an associated supply of goods would be justifiable to "prevent evasion, avoidance or abuse":

"This may be of particular importance in the case of transactions between connected parties who might seek artificially to convert the consideration for a taxable supply of goods or services into consideration for an exempt grant of credit by inflating the interest rate…"

    25. The Advocate General did not enlarge upon what kind of conditions might be regarded as appropriate for this purpose. But in general European law would require them to satisfy the principle of proportionality in its broad sense, which, following German law, is divided into three sub-principles: first, a measure must be suitable for the purpose for which the power has been conferred; secondly, it must be necessary in the sense that the purpose could not have been achieved by some other means less burdensome to the persons affected and thirdly, it must be proportionate in the narrower sense, that is, the burdens imposed by the exercise of the power must not be disproportionate to the object to be achieved. In the particular instance of conditions for allowing a VAT exemption, the Court of Justice has recently said that such conditions must be "necessary for the attainment of the specific objective which [the legislation] pursues and have the least possible effect on the objectives and principles of the Sixth Directive": Ampafrance SA v Directeur des Services Fiscaux de Maine-et-Loire (Joined cases C-177 and 181/99) [2000] ECR I-7013, 7074, para 60.

    26. The Court of Justice has acknowledged that the purpose of preventing "evasion, avoidance or abuse" may entitle member states to impose requirements as to the information to be contained in contractual documents. For example, in Jorion v Belgium State (Joined cases 123/87 and 330/87 [1988] ECR 4517 it accepted that it was legitimate for Belgium to require, as a condition of a VAT deduction, that the invoice on the sale of a motor car should contain a good deal of information enabling the car to be identified and thereby to prevent substitution and fraud. But there was in that case no requirement that the information had to be provided in any particular form and the court noted, at p 4541, para 9, that: "As regards invoices which are irregular as to form, the deduction is allowed when the genuine nature of the transaction is not open to doubt." In these circumstances the court said that the conditions could be justified provided only (see p 4544, para 18) that they did not "by reason of their number or technical nature, render the exercise of the right of deduction practically impossible or excessively difficult."

    27. In the present case, however, I have great difficulty, for the reasons I have already explained, in seeing how a provision insisting not merely that the documents disclose the apportionment of consideration but do so in a particular form can be said to be "suitable for the purpose" of preventing avoidance. The additional burden upon suppliers would in my opinion be disproportionate to any effect the measure would have in addressing the alleged problem. On the other hand, if the specific objective is to prevent surreptitious or retrospective value shifting, then it seems to me that all that is required is disclosure of the apportionment without insistence on any particular form.

    28. Mr Paines said that proportionality was concerned with imposing disproportionate burdens and that there was nothing more burdensome in imposing a requirement that the amount be stated as a self-contained figure than in requiring it to be stated referentially. Either was perfectly easy to comply with. In my opinion this is disingenuous. Any additional formal requirement, non-compliance with which may result in denial of exemption, is an additional burden. If the Note had required invoices to be on A4 paper, it could equally have been said that A4 paper was just as easy to obtain as any other kind of paper. But the imposition of such a requirement, which did nothing to advance any legitimate objective, would be disproportionate. Likewise, a requirement that information be communicated in any particular form is more burdensome than a requirement that it may be communicated in any form. And where, as in this case, the addition of a requirement of form appears to serve no legitimate purpose, I think that it is also disproportionate.

    29. It is the duty of a court in the United Kingdom to construe a statute, so far as possible, in conformity with European law: see Litster v Forth Dry Dock & Engineering Co Ltd 1989 SC (HL) 96. In my opinion the Commissioners' construction does not conform to the terms of the Sixth Directive and it is therefore necessary to adopt the alternative construction which does. I would therefore allow the appeal and declare that the taxpayer is entitled to exemption for the consideration attributable to insurance-related services during the relevant period.

LORD SLYNN OF HADLEY

My Lords,

    30. The principal facts, the terms of the contract and the legislative provisions relevant to this appeal are set out in the opinion of my noble and learned friend Lord Hoffmann to which I gratefully refer without repeating.

    31. I agree with Lord Hoffmann that as an ordinary matter of construction "the arguments are finely balanced" as to whether Note 5 to Group 2 in Schedule 9 to the Value Added Tax Act 1994 (as amended with effect from 19 March 1997 by section 38 of the Finance Act 1997) that:

"a statement setting out every amount that the customer is, is to be or has been required to pay, otherwise than by way of such a premium, in connection with that transaction or anything that is to be, may be or has been done in pursuance of that transaction"

    requires a statement of the actual amount or whether it is sufficient to indicate by a formula the method of calculating the amount. If the latter is enough the question arises in the present case and no doubt in others as to whether the formula adopted is clear enough to amount to a "statement setting out every amount" so that the customer can readily know what is the amount.

    32. I am also in agreement with Lord Hoffmann that in interpreting the contractual terms in the present case there are difficulties about the meaning of some of the phrases used—eg whether 10% is 10% of the total contract price (as like him I think it is), whether the total contract price is inclusive or exclusive of VAT (as like him in the end I think it is). I also have difficulties in the concept of calculating the charge for services (to be exempt from VAT) as a percentage of the price including VAT and I too think that the tribunal was generous to the taxpayer in being "satisfied that the amount could be ascertained from the written terms of the contract".

    33. To get the benefit of the exemption from VAT on services related to the provision of insurance it is clearly mandatory that a document should be prepared "containing the statement specified in Note 5" (see Notes 3 and 4 to Group 2 in Schedule 9 (and in particular Note 4 (a)) to the Value Added Tax 1994 as amended).

    34. Mr Paines laid much emphasis on the argument that the object and result of insisting on a precise figure is that it would prevent value shifting—ie putting more of the total contract price on the exempt items and thereby reducing the basic price of the goods which are not exempt. If this was the only argument I would not be satisfied that requiring a figure necessarily does, whereas stating a formula necessarily does not, prevent value shifting.

    35. But Mr Paines had another argument which in one way is linked to the value shifting argument. It is that the object of the legislation is to require the supplier to give clearly and transparently the amount of the charge. That has the effect that the customer who may enter into the contract with a salesman at the door has a statement immediately obvious as to what is the amount he is charged under the various headings and in particular for "anything that is to be, may be or has been done in pursuance of that transaction" (Note 5 (b) to Group 2). It would also enable him more readily to calculate the residual amount subject to VAT and the amount of the VAT itself. But it would also make it less easy for a supplier to make retrospective adjustments to the various items and in particular the basic price and the administration charge. It is clear that, as Lord Hoffmann points out, this could still be achieved "if the allocation [is] unequivocally stated in the document". In my opinion, however, the clearest way, subject to the argument on proportionality to which I return, is to give the words their ordinary meaning—"set out an amount" means "state a figure" rather than "indicate a formula" by which an amount can be calculated.

    36. It is to be noted that Note 5(a) requires that there must be "a statement setting out the amount of the premium". That seems to me plainly to mean that the amount in money of the premium must be stated rather than that a formula be given and the words "a statement setting out every amount . . ." in Note 5(b) in my opinion should be read in the same way. It is of some relevance (though of course by no means compelling) to note that in other sections of the legislation the reference to an amount seems to require a figure rather than a formula.

    37. Reference has been made to Insurance Notice 701/36 of 1997, Appendix B in relation to Note 5 where it is said that "[i]n order to treat a supply of arranging insurance as exempt, an intermediary is required to disclose the premium as well as any fee charged over and above that premium". I cannot see that this assists the appellant. It is perhaps neutral but in my view is more naturally to be read as meaning that the intermediary must tell the customer in the document what in money is the fee charged over and above the premium.

    38. I consider more relevant the provision of Note 5 (b) that it is not just "the amount of the charge" which is to be set out but

"every amount that the customer . . .is to be or has been required to pay … in connection with that transaction or anything that is to be, may be or has been done in pursuance of that transaction" (emphasis added).

    This again is obviously not conclusive but in the interests of simplicity, transparency and "a correct and straightforward" application of such exemption (article 13 B of the Sixth VAT Directive (77/388/EEC)), it seems to me to indicate that for every amount for anything to be done a figure is required rather than there should be set out separate formulae. I thus agree with the reasoning of the Court of Session that as a matter of construction, amount means a specific monetary figure.

    39. I reject the suggestion that by providing for an amount (a figure) to be set out rather than permitting any other means (formula or otherwise) of indicating to a customer the way in which he or his advisers can calculate the amount to be paid, the United Kingdom is in breach of its obligation under article 13 of the Sixth Directive that it shall:

"exempt the following under conditions which they shall lay down for the purpose of ensuring the correct and straightforward application of such exemptions and of preventing any possible evasion, avoidance or abuse".

    40. The member states there are clearly given a degree of discretion as to the methods they adopt and subject to the argument on proportionality it seems to me that to require a figure is no more unreasonable than requiring a formula or permitting a choice between a figure and a formula.

    41. It is said, however, that the requirements must be read in accordance with the Community law principle of proportionality. That is clear; I agree. It is also said that to require a specific monetary figure is in breach of that principle. That I do not agree. Limiting the objective to achieving clarity and transparency it seems to me that to require a figure to be stated is a suitable (the most suitable) way and is not more burdensome or disproportionate to the objective to be achieved. It is said that to require someone to calculate 10% of another figure is very easy. That is so. But the figure might not have been, and elsewhere might not be, 10%. It might have been 17.5% or 24.33% . Moreover to say 10% or 17.5% of the total contract price opens up the question in the case like the present as to what figure the customer has to start with in order to calculate 10% or 17.5%. Is it £1,000, £1,016, £1,016 plus the VAT to be calculated, before 10% is calculated? How does he add on the administration charge, if that is part of the total contract price, in calculating the 10% or the 17.5%? These may all be obvious to the VAT expert but they are not necessarily obvious to the customer. The customer is entitled to be considered in deciding what is suitable or proportionate and unduly burdensome.

    42. Moreover it seems to be at least likely that the supplier will have to calculate these figures at some stage, either for his VAT purposes or for other accounting purposes. He needs to calculate the amount of 10% or 17.5% of the total contract price. It seems to me that he will have to do it sometime. He might as well do it at the beginning and inform the customer.

    43. The Crown argues that it is clear that exemptions are to be strictly construed in the VAT legislation. (Stichting Uitvoering Financiële Acties v Staatssecretaris van Financiën (Case 348/1987) [1989] ECR 1737). That submission is right but the rule does not it seems to me apply directly in the present case. On the other hand I cannot see that any principle of Community law requires that a national court needs to be zealous in condemning a requirement laid down by a national legislature which prima facie is within its powers under article 13 to prescribe the conditions for an exemption.

    44. We are here concerned not with the existence of the principle of proportionality but its application. I consider that in the present case the purpose was legitimate and the means proportionate. There is an advantage not only of transparency but of avoiding arguments as to whether other methods of giving an indication to the customer are clear enough—arguments which may themselves lead to distinctions between cases more likely (than the requirement that a figure be stated) to deprive suppliers of the exemption to which article 13 entitles them.

    45. I would therefore uphold the decision of the Court of Session and dismiss the appeal.

LORD WOOLF

My Lords,

    46. I have had the advantage of reading in draft the speech of my noble and learned friend Lord Hoffmann. I agree with it and for the reasons which Lord Hoffmann gives I would allow this appeal.

LORD HOPE OF CRAIGHEAD

My Lords,

    47. I have had the advantage of reading in draft the speech of my noble and learned friend Lord Hoffmann. I agree with it, and for the reasons which he has given I too would allow the appeal.

    48. We are concerned in this case with a question as to the meaning of words in domestic legislation which was enacted to implement article 13B(a) of EC Sixth Directive (77/388/EEC). Member states were required by that article to exempt insurance and reinsurance transactions, including related services performed by insurance brokers and insurance agents from VAT. But they were permitted to attach conditions to that exemption for the purpose of ensuring its correct and straightforward application and of preventing any possible evasion, avoidance and abuse. This problem appears to have been approached both before the Tribunal and in the Inner House on the assumption that the meaning which was to be given to the words "every amount" in Note 5(b) of the Notes to Group 2 in Schedule 9 to the Value Added Tax Act 1994 could be found by giving them their ordinary meaning according to the ordinary domestic rules of construction: 2001 SC 646. As a general rule however legislation which is designed to give effect to Community legislation under article 249 EC (formerly article 189) requires to be read compatibly with that legislation as explained by the decisions of the European Court of Justice. It will rarely, if ever, be satisfactory to ignore the principles which have been laid down by the European Court of Justice in the relevant case law. The parties are now agreed that the sole issue in the appeal to your Lordships is whether the terms of the taxpayer's standard form contract satisfied the requirements of Note 5(b) read compatibly with the opening words of article 13B and 13B(a) of the Sixth Directive.

    49. In Litster v Forth Dry Dock & Engineering Co Ltd 1989 SC (HL) 96, the point that was in issue was the meaning of the words "immediately before" in regulation 5(3) of the Transfer of Undertakings (Protection of Employment) Regulations 1981. Those regulations were designed to give effect to Council Directive (77/187/EEC). As Lord Keith of Kinkel said, at p 101, it was the duty of the court to give regulation 5 a construction which accorded with decisions of the European court upon the corresponding provisions of the Directive to which the regulation was intended by Parliament to give effect. In this case the question is whether the provision of a formula by which the amount of the fee for arranging insurance could be ascertained was sufficient to satisfy the requirement in Note 5(b) to set out the "amount" of the fee. If it was not, the relevant requirements for the purposes of Note 3 will not have been fulfilled and the taxpayer will be deprived of the exemption from VAT which article 13 of the Sixth Directive provides and which the domestic legislation was designed to implement. It is settled case law that any derogations from rules intended to guarantee the effectiveness of rights recognised by the EC Treaty must be interpreted strictly: see Richard Brent, Directives: Rights and Remedies in English and Community Law (2001), p 119, para 11.14. In Ampafrance SA v Directeur des Services Fiscaux de Maine-et-Loire (Joined cases C-177 and 181/99) [2000] ECR I-7013, 7074, para 60, the court observed that, in order for a Community measure concerning the VAT system to be compatible with the principle of proportionality, the provisions which it embodies must be necessary for the attainment of the specific objective which it pursues and have the least possible effect on the objectives and principles of the Sixth Directive.

    50. In my opinion it is far from clear that the phrase "a statement setting out every amount" in Note 5(b), giving the words their ordinary meaning and reading them in context, are incapable of including a formula by which the figure which represented the fee for arranging the insurance could be ascertained. The Tribunal held that the monetary figure could be ascertained from the information in the contract, and in the Inner House it was appreciated that there was no practical difference between the monetary figure and 10% of the contract price: 2001 SC 646, 652C, para 13. There has been no suggestion of an intention on the taxpayer's part to evade, avoid or abuse the exemption. The requirement to achieve certainty as to the amount would appear to have been satisfied by disclosure of the formula, as the Note required, to the customer.

    51. The matter is put beyond doubt however by applying the approach indicated by the decisions of the European court to the words used in Note 5(b). Lord Hoffmann has reviewed these decisions and I adopt with gratitude all that he has said about them. The essence of the matter lies in the strict form which the principle of proportionality assumes where a measure derogates from an exemption in a directive designed to harmonise the laws of the member states. The words of the Note must be construed in a way that is least detrimental to the taxpayer. They should not be allowed to deprive him of the exemption unless this is strictly necessary for achieving the aim indicated by the opening words of article 13B. The test as to whether the words go further than was necessary in each case lies in the facts.

    52. On the undisputed facts of this case, the construction of Note 5(b) for which the Commissioners contend would have the effect of denying the exemption to the taxpayer although sufficient information to enable the relevant figure to be worked out was disclosed to the customer. There is no hint of a suggestion that there was any evasion, avoidance or abuse or that the exemption could not be applied correctly. I think that the taxpayers are entitled to a finding that the relevant requirements are satisfied and that the service to the customer which is described in clause 6.3 of their contract falls within item 4 of Group 2 in Schedule 9 to the 1994 Act.

LORD WALKER OF GESTINGTHORPE

My Lords,

    53. I have had the advantage of reading in draft the speech of my noble and learned friend Lord Hoffmann. I agree with it and for the reasons which Lord Hoffmann gives I would allow this appeal.