Judgment — ECLI:EU:C:2006:402
Date: 2006-06-15
Language of the case: German
Court formation: Third Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Taxation;Indirect taxation
Concepts: Indirect taxation on the raising of capital
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the Judgment 1. Tax provisions – Harmonisation of laws – Indirect taxes on the raising of capital (Council Directive 69/335, Art. 10(c)) 2. Tax provisions – Harmonisation of laws – Indirect taxes on the raising of capital (Council Directive 69/335, Art. 12(1)(b) and (2)) 1. A fee charged for rectification of the land register in the case of the merger of two legal persons falls in principle within the prohibition under Article 10(c) of Directive 69/335 concerning indirect taxes on the raising of capital against levying taxes, apart from capital duty, in respect of registration or any other formality required before the commencement of business to which a company, firm, association or legal person operating for profit may be subject by reason of its legal form. Rectification is clearly a formality to which a legal person is made subject by reason of its legal form, since it attests to the transfer of land from one legal person to the other, which is a direct consequence of the merger between them. Although rectification of the land register does not, in a strict sense, appear to be a formality required before the carrying‑out of any business, it is none the less necessary for the carrying‑on of that business, since a legal person’s acquisition of land by means of a merger and takeover is subject to compulsory rectification of the land register. (see paras 23-25, 27, 29, operative part 1) 2. A fee charged for rectifiction of the land register in the case of a merger between two legal persons, calculated by reference to general and objective criteria, by reference to the value of the subject-matter of the transaction, is objectively linked to the transfer of ownership of land from one legal person to another and may therefore, in derogation from Article 10(c) of Directive 69/335 concerning indirect taxes on the raising of capital, be regarded as a transfer duty authorised by Article 12(1)(b) of that directive, provided it is not higher than those applicable to similar operations in the taxing Member State in accordance with the provisions of Article 12(2) of Directive 69/335. It is for the national court to examine whether that condition has been fulfilled. (see paras 34-36, 45, operative part 2)