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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Albert Reiss Beteiligungsgesellschaft (Taxation) [2007] EUECJ C-466/03 (28 June 2007) URL: https://www.bailii.org/eu/cases/EUECJ/2007/C46603.html Cite as: [2007] EUECJ C-466/03, [2007] ECR I-5357, [2007] EUECJ C-466/3 |
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(Directive 69/335/EEC Indirect taxes on the raising of capital National provisions which provide for notarial fees to be charged for the authentication of the transfer of shares in limited liability companies Tax decision Classification as a 'duty similar to capital duty' Prior formality Duties on the transfer of securities Duties paid by way of fees or dues)
In Case C-466/03,
REFERENCE for a preliminary ruling and a supplementary reference for a preliminary ruling under Article 234 EC from the Landgericht Baden'Baden (Germany), made by decisions of 20 October 2003 and 10 October 2005, received at the Court on 6 November 2003 and 31 October 2005 respectively, in the proceedings
Albert Reiss Beteiligungsgesellschaft mbH
Land Baden-Württemberg,
composed of P. Jann (Rapporteur), President of the Chamber, K. Lenaerts, E. Juhász, M. Ilešič and E. Levits, Judges,
Advocates General: L.A. Geelhoed, subsequently V. Trstenjak,
Registrars: R. Grass, Registrar, subsequently B. Fülöp, Administrator,
having regard to the written procedure and further to the hearing on 9 November 2006,
after considering the observations submitted on behalf of:
Albert Reiss Beteiligungsgesellschaft mbH, by A. Feber and H. Sandweg, Rechtsanwälte,
the Land Baden-Württemberg, by K. Ehmann, M. Steindorfner and F. Mauch, acting as Agents,
the Commission of the European Communities, by R. Lyal and K. Gross, acting as Agents,
after hearing the Opinions of the Advocates General at the sittings on 16 June 2005 and 8 March 2007,
gives the following
Legal context
Community law
'Notwithstanding Articles 10 and 11, Member States may charge:
(a) duties on the transfer of securities, whether charged at a flat rate or not;
...
(e) duties paid by way of fees or dues;
...'
'[Indirect] taxes [on capital movements] include, first, those on the raising of capital and, second, those on transactions in securities. This draft directive concerns indirect taxes on the raising of capital, a category which includes capital duty on companies' own capital, stamp duty on national securities, stamp duty charged on the introduction or issue on the national market of securities of foreign origin, and other indirect taxes with similar characteristics. As regards indirect taxes on transactions in securities, such as taxes on stock exchange transactions, they will form the subject-matter of another draft directive. This proposal therefore does not affect them.'
National law
for transactions of a value of up to EUR 5000, by EUR 8 for each additional EUR 1000,
for transactions of a value of up to EUR 50 000, by EUR 6 for each additional EUR 3000,
for transactions of a value of up to EUR 5 000 000, by EUR 15 for each additional EUR 10 000,
for transactions of a value of up to EUR 25 000 000, by EUR 16 for each additional EUR 25 000,
for transactions of a value of EUR 50 000 000, by EUR 11 for each additional EUR 50 000,
for transactions of a value of up to EUR 50 000 000, by EUR 7 for each additional EUR 250 000.
'(1) Fees and expenses for the activity of a notary shall be levied by the State treasury.
(2) Fees and expenses for a notary's activities in terms of Paragraph 3(1) of the Land Law on non-contentious jurisdiction [(Landesgesetz über die freiwillige Gerichtsbarkeit)], and also any interest in terms of Paragraph 154a of the Kostenordnungrdnung are payable to the notary. ...
(3) The notary shall be entitled to the fees, expenses and interest referred to in the first sentence of sub-paragraph (2) ... in addition to the charges to which he is entitled under the Land Law on the remuneration of civil servants [(Landesbesoldungsgesetz)].'
The main proceedings and the questions referred
'Does Article 10(c) of ... Directive 69/335 ... also encompass charges for the notarially attested transfer of shares in a private limited company?'
'Do the notarial charges cease to constitute a tax for the purposes of Directive 69/335 if the State waives its claim to the portion of the charges due to it in respect of the legal transaction and therefore leaves the charges minus a sum to recoup expenditure, at the flat rate of 15%, for the State to the notary in the civil service himself, but the notary otherwise remains integrated into the administrative organisation and is remunerated by the State for the performance of public duties?'
The requests seeking the reopening of the oral procedure and the measures of inquiry
The questions referred
Admissibility
Substance
The meaning of 'tax' for the purposes of Directive 69/335
The prohibition of taxes akin to capital duty (Article 10(c) of Directive 69/335)
The provision authorising the charging of duties on the transfer of securities (Article 12(1)(a) of Directive 69/335)
The derogation authorising duties paid by way of fees or dues (Article 12(1)(e) of Directive 69/335)
Costs
On those grounds, the Court (First Chamber) hereby rules:
Article 10(c) of Council Directive 69/335/EEC of 17 July 1969 concerning indirect taxes on the raising of capital, as amended by Council Directive 85/303/EEC of 10 June 1985, precludes the charging of notarial fees for the authentication of a transfer of shares in a company made as a contribution in the course of an increase in the share capital of a capital company, in a system characterised by the fact that notaries are employed as civil servants and that the fees are, at least in part, paid to the State to subsidise public expenditure.
[Signatures]
* Language of the case: German.