Opinion of the Advocate General — ECLI:EU:C:2014:2471
Date: 2014-12-18
Language of the case: Polish
Subject matter: Taxation;Indirect taxation
Procedure: Reference for a preliminary ruling
Origin: Poland

Summary — Judgment of the Court (Second Chamber), 22 April 2015 Tax provisions — Harmonisation of laws — Indirect taxes on the raising of capital — Capital company — Definition — Partnerships limited by shares not listed in point 21 of Annex I to Directive 2008/7 — Included — Conditions (Council Directive 2008/7, Art. 2(1)(b) and (c) and Annex I, point 21) Article 2(1)(b) and (c) of Directive 2008/7 concerning indirect taxes on the raising of capital must be interpreted as meaning that a partnership limited by shares under Polish law must be regarded as a capital company within the meaning of that provision even if only some of its capital and members are able to satisfy the conditions laid down by that provision. Since Article 2(1) of Directive 2008/7 lays down, in a mandatory and uniform manner for all Member States, the companies to be regarded as capital companies within the meaning of that directive, the fact that a partnership limited by shares under national law does not appear in point 21 of Annex I to Directive 2008/7 as one of the companies under national law which must be regarded as capital companies on the basis of Article 2(1)(a) of that directive does not prevent it from being recognised as a capital company where it possesses the characteristics set out in Article 2(1)(b) and (c). Consequently, any company which has those characteristics, regardless of its classification in the law of each Member State, is a ‘capital company’ for the purposes of that directive. Moreover, the wording of Article 2(1)(b) and (c) of Directive 2008/7 contains nothing to indicate that the EU legislature intended to exclude from the concept of ‘capital company’ legal structures of a hybrid nature in which only some of the shares in the capital or assets can be dealt in on a stock exchange, or in which only some of the members have the right to dispose of their shares to third parties without prior authorisation and are responsible for the company’s debts only to the extent of their shares. In particular, that provision does not lay down any threshold, either with respect to the amount of shares in the capital or assets of the company which can be dealt in on a stock exchange or with respect to the number of members of a company operating for profit who have the right to dispose of their shares to third parties without prior authorisation and are responsible for the company’s debts only to the extent of their shares, below which a company cannot be regarded as a capital company on the basis of that provision. (see paras 25, 27-30, 36, operative part)