Opinion of the Advocate General — ECLI:EU:C:2007:58
Date: 2007-01-25
Language of the case: Portuguese
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Taxation;Indirect taxation
Procedure: Reference for a preliminary ruling
Origin: Portugal

Summary of the Judgment 1. Tax provisions – Harmonisation of laws – Indirect taxes on the raising of capital – Capital duty charged on capital companies (Council Directive 69/335, Art. 7(1)) 2. Tax provisions – Harmonisation of laws – Indirect taxes on the raising of capital – Capital duty charged on capital companies (Council Directive 69/335, Arts 7(1) and 10) 1. Article 7(1) of Directive 69/335 concerning indirect taxes on the raising of capital, as amended by Directive 85/303, must be interpreted to mean that, in the case of a State which joined the European Communities with effect from 1 January 1986, in the absence of derogating provisions in the Act of Accession of that State or in another Community document, the mandatory exemption for which that provision provides applies to all transactions falling within the scope of Directive 69/335 which, on 1 July 1984, were exempted, in that State, from capital duty or which were subject to that duty at a reduced rate of 0.50% or less. The clear and unconditional obligation, on the part of Member States, to exempt those transactions, is also binding on the Member State concerned as from 1 January 1986, the date on which its accession to the Communities took effect. That date coincides with the time‑limit set for transposition of the substantial amendments made to Directive 69/335 by Directive 85/303, so that the only version of Directive 69/335 which applies to that Member State is that established by Directive 85/303. The date of 1 July 1984, which is taken as the relevant date under Article 7(1) of Directive 69/335, is equally applicable to that Member State. In the case of accession, a reference to a date laid down in Community law, in the absence of a provision to the contrary in the Act of Accession or some other Community document, applies equally to the State which is acceding, even if that date is earlier than the date of its accession. (see paras 28, 30, 32-33, operative part 1) 2. In the case of a State which joined the European Communities with effect from 1 January 1986, Articles 7(1) and 10 of Directive 69/335 concerning indirect taxes on the raising of capital, as amended by Directive 85/303, prohibit the introduction, after 1 January 1986, of stamp duty on a transaction increasing share capital falling within the scope of Directive 69/335 which, on 1 July 1984, was exempted from that duty under national law. (see para. 46, operative part 2)