# C_2012174EN.01001601.xml

| 16.6.2012 | EN | Official Journal of the European Union | C 174/16 |
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16.6.2012

EN

Official Journal of the European Union

C 174/16

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Reference for a preliminary ruling from the Tribunal Supremo (Spain) lodged on 19 March 2012 — Caixa d’Estalvis i Pensions de Barcelona v Generalidad de Cataluña

(Case C-139/12)

2012/C 174/24

Language of the case: Spanish

Referring court

Referring court

Tribunal Supremo

Parties to the main proceedings

Parties to the main proceedings

Applicant: Caixa d’Estalvis i Pensions de Barcelona

Applicant:

Defendant: Generalidad de Cataluña

Defendant:

Questions referred

Questions referred

| 1. | Is it a requirement of Article 13B(d)(5) of Council Directive 77/388/EEC (1) of 17 May 1977 (now Council Directive 2006/112/EC of 28 November 2006) that transactions by a taxable person involving the sale of shares which amount to acquiring title to immovable property be subject to VAT and not be exempt, in view of the exception made in respect of securities giving the holder thereof de jure or de facto rights of ownership or possession over immovable property or part thereof? |
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1.

Is it a requirement of Article 13B(d)(5) of Council Directive 77/388/EEC (1) of 17 May 1977 (now Council Directive 2006/112/EC of 28 November 2006) that transactions by a taxable person involving the sale of shares which amount to acquiring title to immovable property be subject to VAT and not be exempt, in view of the exception made in respect of securities giving the holder thereof de jure or de facto rights of ownership or possession over immovable property or part thereof?

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de jure

de facto

| 2. | Does Council Directive 77/388/EEC of 17 May 1977 permit a provision such as Article 108 of Spanish Law 24/1988 on the Stock Market, which provides that the acquisition of the majority of the capital of a company whose assets essentially comprise immovable property is liable to an indirect tax other than VAT, namely capital transfer duty, without regard to the possibility that the parties to the transaction may be acting in a business capacity, bearing in mind that had the immovable property been transferred directly, instead of transferring the shares or interests, the transaction would have been subject to VAT? |
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2.

Does Council Directive 77/388/EEC of 17 May 1977 permit a provision such as Article 108 of Spanish Law 24/1988 on the Stock Market, which provides that the acquisition of the majority of the capital of a company whose assets essentially comprise immovable property is liable to an indirect tax other than VAT, namely capital transfer duty, without regard to the possibility that the parties to the transaction may be acting in a business capacity, bearing in mind that had the immovable property been transferred directly, instead of transferring the shares or interests, the transaction would have been subject to VAT?

| 3. | Is it compatible with the freedom of establishment under Article [43] EC (now Article 49 TFEU) and with the free movement of capital under Article 56 EC (now Article 63 TFEU) for a provision of national law such as Article 108 of the Spanish Law on the Stock Market of 28 July 1988, as amended by the 12th additional provision of Law 18/1991, to provide that duty is chargeable on the acquisition of the majority of the capital of companies whose assets essentially comprise immovable property situated in Spain, without offering the possibility of demonstrating that the company over which control is obtained is economically active? |
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3.

Is it compatible with the freedom of establishment under Article [43] EC (now Article 49 TFEU) and with the free movement of capital under Article 56 EC (now Article 63 TFEU) for a provision of national law such as Article 108 of the Spanish Law on the Stock Market of 28 July 1988, as amended by the 12th additional provision of Law 18/1991, to provide that duty is chargeable on the acquisition of the majority of the capital of companies whose assets essentially comprise immovable property situated in Spain, without offering the possibility of demonstrating that the company over which control is obtained is economically active?

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(1)  Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonization of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1).

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