Opinion of the Advocate General — ECLI:EU:C:2007:374
Date: 2007-06-21
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Taxation;Indirect taxation
Procedure: Reference for a preliminary ruling
Origin: Austria

Summary of the Judgment Tax provisions – Harmonisation of laws – Indirect taxes on the raising of capital – Capital duty charged on capital companies (Council Directive 69/335, Arts 3(1)(a), 4(1)(g) and (3)(b), and 7(2)) Article 4(1)(g) and (3)(b) of Directive 69/335 concerning indirect taxes on the raising of capital, as amended by Directive 85/303 and by the Act concerning the conditions of accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden and the adjustments to the Treaties on which the European Union is founded, must be interpreted to the effect that the waiver by a Member State of the charging of capital duty does not preclude a company falling within one of the categories referred to in Article 3(1)(a) of that directive from being classified as a capital company for the purposes of charging capital duty within the meaning of Article 4(1)(g) of that directive if its effective centre of management is transferred from that Member State to another Member State in which that duty is still levied. Article 3(1) of Directive 69/335 specifies, in a mandatory and uniform manner for all Member States, the companies to be treated as capital companies for the purposes of that directive. A company taking one of the legal forms provided for in Article 3(1) of Directive 69/335 must, therefore, be treated as a capital company within the meaning of that directive, and thus cannot be liable to capital duty if its effective centre of management is transferred from one Member State to another, on the ground that it would not be considered to be a capital company in the Member State of origin. Therefore, the fact that a Member State has exercised the option provided for in Article 7(2) of Directive 69/335 by abolishing capital duty does not mean that, if the effective centre of management of a capital company is transferred from that Member State to another Member State, the latter State may automatically make that transaction subject to capital duty. Nevertheless, the result of such an interpretation cannot be to encourage conduct characterised by the putting in place of artificial arrangements with the sole aim of obtaining a fiscal advantage. It is for the national court to verify whether there is objective evidence of action constituting an abusive practice of that kind. (see paras 21, 28-29, 35, 45-47, operative part)