# C_2004228EN.01002102.xml

| 11.9.2004 | EN | Official Journal of the European Union | C 228/21 |
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11.9.2004

EN

Official Journal of the European Union

C 228/21

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Reference for a preliminary ruling by the Amtsgericht Breisach (Germany) by decision of that court of 7 June 2004 in the case of Badischer Winzerkeller eG against Land Baden-Württemberg

(Case C-264/04)

(2004/C 228/42)

Reference has been made to the Court of Justice of the European Communities by decision of the Amtsgericht Breisach (Germany), of 7 June 2004, which was received at the Court Registry on 22 June 2004, for a preliminary ruling in the case of Badischer Winzerkeller eG against Land Baden-Württemberg.

The Amtsgericht Breisach (Germany) asks the Court of Justice to give a preliminary ruling on the following question:

| 1. | Must Council Directive 69/335/EEC (1) of 17 July 1969 concerning indirect taxes on the raising of capital, in the version resulting from Council Directive 73/79/EEC (2) of 9 April 1973 varying the field of application of the reduced rate of capital duty provided for in respect of certain company reconstruction operations by Article 7(1)(b) of the Directive concerning indirect taxes on the raising of capital, Council Directive 73/80/EEC (3) of 9 April 1973 fixing common rates of capital duty, Council Directive 74/553/EEC (4) of 7 November 1974 amending Article 5(2) of Directive No 69/335/EEC concerning direct taxes on the raising of capital, and Council Directive 85/303/EEC (5) of 10 June 1985 amending Directive 69/335/EEC concerning indirect taxes on the raising of capital (hereinafter referred to as ‘the directive’) be interpreted as meaning that all operations referred to in Article 10(c) of the directive fall within the prohibition thereby enacted, irrespective of the conditions in Article 4? |
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1.

Must Council Directive 69/335/EEC (1) of 17 July 1969 concerning indirect taxes on the raising of capital, in the version resulting from Council Directive 73/79/EEC (2) of 9 April 1973 varying the field of application of the reduced rate of capital duty provided for in respect of certain company reconstruction operations by Article 7(1)(b) of the Directive concerning indirect taxes on the raising of capital, Council Directive 73/80/EEC (3) of 9 April 1973 fixing common rates of capital duty, Council Directive 74/553/EEC (4) of 7 November 1974 amending Article 5(2) of Directive No 69/335/EEC concerning direct taxes on the raising of capital, and Council Directive 85/303/EEC (5) of 10 June 1985 amending Directive 69/335/EEC concerning indirect taxes on the raising of capital (hereinafter referred to as ‘the directive’) be interpreted as meaning that all operations referred to in Article 10(c) of the directive fall within the prohibition thereby enacted, irrespective of the conditions in Article 4?

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| 2. | When applying the directive, should no distinction be made between fees for the provision of services by the State and taxes, with the result that ‘fees’ under the Kostenordnung can be assimilated to taxes on the transfer of ownership? |
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2.

When applying the directive, should no distinction be made between fees for the provision of services by the State and taxes, with the result that ‘fees’ under the Kostenordnung can be assimilated to taxes on the transfer of ownership?

| 3. | Should the Court answer the second question in the affirmative, should the last sentence of Article 12(2) of the directive be interpreted as meaning that an exception arises from the fact that Article 60 of the Kostenordnung (Gesetz über die Kosten in Angelegenheiten der freiwilligen Gerichtsbarkeit, in the version of 26 July 1957, Bundesgesetzblatt I, p. 960), for example, makes no provision for a charge for rectifying the land register in succession cases where the application for registration is made within two years following the death? |
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Should the Court answer the second question in the affirmative, should the last sentence of Article 12(2) of the directive be interpreted as meaning that an exception arises from the fact that Article 60 of the Kostenordnung (Gesetz über die Kosten in Angelegenheiten der freiwilligen Gerichtsbarkeit, in the version of 26 July 1957, Bundesgesetzblatt I, p. 960), for example, makes no provision for a charge for rectifying the land register in succession cases where the application for registration is made within two years following the death?

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(1)  OJ L 249, p. 25.

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(2)  OJ L 103, p. 13.

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(3)  OJ L 103, p. 15.

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(4)  OJ L 303, p. 9.

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(5)  OJ L 156, p. 23.

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