Opinion of the Advocate General — ECLI:EU:C:2009:129
Date: 2009-03-05
Language of the case: Spanish
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Taxation;Indirect taxation
Procedure: Action for failure to fulfil obligations - successful;Action for failure to fulfil obligations - unfounded
Origin: Spain

summary form, the legal and factual particulars on which those complaints are based, to allow the Court to rule on the application. (22) 76. In this case, the application fails to meet those requirements in relation to the third plea. 77. In the section of the application containing the legal assessment, the Commission merely alleges a breach of Article 2(1) of the directive. Article 2(1) provides that transactions subject to capital duty are to be taxable only in the Member State in whose territory the effective centre of management of a capital company is situated at the time when such transactions take place. 78. However, the Commission’s application fails to identify the facts and circumstances that are supposed to have resulted in a breach of Article 2(1) of the directive. 79. It is true that Article 2(1) of the directive contains a rule on how the power to tax is to be allocated as between the Member States, conferring the right to tax on the Member State in which the effective centre of management of a company is located. However, as is clear from its wording, the rule under Article 2(1) applies only to transactions which are subject to capital duty. 80. Article 4 of the directive determines which transactions are subject to capital duty. Those transactions include, among others, the formation of a capital company and an increase in the capital of a capital company. 81. The Commission has failed to specify which transactions are actually taxed under Spanish law. The Commission refers only to the taxation of capital used by permanent establishments and subsidiaries to carry out business transactions. Consequently, it is not clear, for example, whether the tax is charged only once or on a regular basis. 82. Consequently, it is not possible to link that taxation procedure unequivocally to one of the transactions covered by Article 4 of Directive 69/335. 83. If the transaction that has been taxed cannot be brought within the transactions to which Article 4 of Directive 69/335 refers, then, contrary to what the Commission alleges, the breach of Article 2(1) of the directive which the Commission alleges could not have taken place, as the legislation would not be covered by Directive 69/335. It is conceivable that the Spanish rules might be in breach of the principles of the freedom of establishment or the free movement of capital. However, the Commission has not alleged that the fundamental freedoms have been infringed. 84. Since the exposition of the plea on which the Commission relies in its action for failure to fulfil obligations is insufficiently clear, the requirements laid down by Article 21 of the Protocol on the Statute of the Court of Justice and Article 38(1)(c) of the Rules of Procedure have not been satisfied. 85. The third plea must therefore be rejected as inadmissible. V – Costs 86. Under Article 69(3) of the Court’s Rules of Procedure, where each party succeeds on some and fails on other heads, the Court may order that the parties must bear their own costs. Spain has failed in relation to the second plea, and the Commission in relation to the third plea; the Commission has succeeded in part only in relation to the first plea. Since the parties have succeeded and failed to the same extent in relation to the pleas to which equal significance must be attached, each party must bear its own costs. 87. Pursuant to Article 69(4) of the Rules of Procedure, the Hellenic Republic must itself bear the costs which it has incurred as a result of its intervention. VI – Conclusion 88. Accordingly, I propose that the Court should: (1) declare that the Kingdom of Spain has failed to fulfil its obligations under Council Directive 69/335/EEC of 17 July 1969 concerning indirect taxes on the raising of capital, as amended by Council Directive 85/303/EEC of 10 June 1985, – by attaching an additional condition to the exemption from duty for transactions subject to Article 7(1)(b) of Directive 69/335 in its original version, and – by making subject to the duty the transfer from another Member State to Spain of a company’s registered office or effective centre of management, if a tax similar to the Spanish tax has not been levied in the State of origin; (2) dismiss the action as to the remainder; (3) order that the Kingdom of Spain and the Commission should each bear their own costs; (4) order the Hellenic Republic to bear its own costs. 1 – Original language: German. 2 – Council Directive 69/335/EEC of 17 July 1969 concerning indirect taxes on the raising of capital (OJ, English Special Edition 1969 (II), p. 412), as amended by Council Directive 85/303/EEC of 10 June 1985 (OJ 1985 L 156, p. 23) (‘Directive 69/335’). 3 – Council Directive 73/80/EEC of 9 April 1973 fixing common rates of capital duty (OJ 1973 L 103, p. 15). 4 – Council Directive 73/79/EEC 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 (OJ 1973 L 103, p. 13). 5 – Cited in footnote 2. 6 – Royal Legislative Decree of 24 September 1993, BOE (Spanish Official Journal) of 20 October 1993. 7 – Enacted by Royal Legislative Decree (Real Decreto Legislativo) No 4/2004 of 5 March 2004, BOE of 11 March 2004. 8 – See, to that effect, Case C-366/05 Optimus – Telecomunicações [2007] ECR I-4985, paragraph 32. 9 – See Article 2 of Directive 73/80, cited in footnote 3. 10 – Article 7(1)(bb) provides that the rate of capital duty may be reduced. 11 – Paragraph 11. 12 – See Case C‑255/02 Halifax and Others [2006] ECR I-1609, paragraph 69, and Case C‑251/06 ING. AUER [2007] ECR I‑9689, paragraph 41. 13 – Council Directive 2008/7/EC of 12 February 2008 concerning indirect taxes on the raising of capital (OJ 2008 L 46, p. 11; ‘Directive 2008/7’). 14 – That interpretation is confirmed by Article 4(3)(b) of the directive, according to which such transfers also cannot be subject to capital duty charged on the formation of a company under Article 4(1)(a). 15 – See Case C‑178/05 Commission v Greece [2007] ECR I‑4185 and my Opinion of 15 February 2007 in that case, and ING. AUER, cited in footnote 12, paragraph 35. 16 – See Commission v Greece, cited in footnote 15, paragraph 30, and ING. AUER, cited in footnote 12, paragraph 33. 17 – Commission v Greece, cited in footnote 15, paragraph 32, and ING. AUER, cited in footnote 12, paragraph 40. 18 – Commission v Greece, cited in footnote 15, paragraph 32. 19 – See Commission v Greece, cited in footnote 15, paragraph 32; ING. AUER, cited in footnote 12, paragraph 41; and Halifax and Others, cited in footnote 12, paragraph 69, and the case-law referred to therein. 20 – See Commission v Greece, cited in footnote 15, paragraph 32, and ING. AUER, cited in footnote 12, paragraph 43 et seq. 21 – See, to that effect, Commission v Greece, cited in footnote 15, paragraph 32. 22 – See Case C‑347/88 Commission v Greece [1990] ECR I-4747, paragraph 28; Case C‑52/90 Commission v Denmark [1992] ECR I‑2187, paragraph 17; Case C‑202/99 Commission v Italy [2001] ECR I‑9319, paragraph 20; and the judgment of 14 October 2004 in Case C‑55/03 Commission v Spain, paragraph 23.