Opinion of the Advocate General — ECLI:EU:C:2005:27
Date: 2005-01-18
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: Germany

Summary of the Judgment 1. Preliminary rulings — Reference to the Court — National court or tribunal for the purposes of Article 234 EC — Definition — Proceedings brought before a German court by a notary employed as a civil servant at the direction of his superior — Included (Art. 234 EC) 2. Preliminary rulings — Jurisdiction of the Court — Limits — General or hypothetical questions — Determination by the Court as to whether it has jurisdiction — Hypothetical legal context — Amendment to legislation envisaged but not yet effected (Art. 234 EC) 3. Tax provisions — Harmonisation of laws — Indirect taxes on the raising of capital — Taxation for the purposes of Directive 69/335 — Definition — Charges of a notary employed as a civil servant in respect of a transaction covered by the directive and which are directed into the State budget — Included — Notaries who are not only civil servants but are themselves owed charges — Irrelevant circumstances (Council Directive 69/335) 1. It follows from Article 234 EC that national courts or tribunals may refer a question to the Court only if there is a case pending before them and if they are called upon to give judgment in proceedings intended to lead to a decision of a judicial nature. That is the case where proceedings concerning the amount of the fees charged for notarisation are brought before a national court or tribunal by a notary employed as a civil servant at the direction of his superior under the Federal Law on taxation of matters of non-contentious jurisdiction if, in those proceedings, all the interested parties are heard, the subsequent decision is intended to resolve a dispute and, furthermore, that decision is enforceable by the person to whom the charges in the statement of costs are owed as well as by the person owing those charges, and becomes binding on all interested parties if none of them appeals. (see paras 25-26) 2. The procedure provided for by Article 234 EC is an instrument of cooperation between the Court of Justice and national courts, by means of which the Court provides the national courts with the points of interpretation of Community law which they need in order to decide the disputes before them. In the context of that cooperation, it is solely for the national court, before which the dispute has been brought and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of Community law, the Court is, in principle, bound to give a ruling. Nevertheless, in exceptional circumstances, the Court can examine the conditions in which the case was referred to it by the national court, in order to assess whether it has jurisdiction. The Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of Community law that is sought bears no relation to the facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it. The spirit of cooperation which must prevail in the preliminary ruling procedure requires the national court to have regard to the function entrusted to the Court of Justice, which is to assist in the administration of justice in the Member States and not to deliver advisory opinions on general or hypothetical questions. A question that is referred for a preliminary ruling in order to establish that a Community provision is compatible with a national legislative framework in which an amendment to the national legislation in question is envisaged but has not yet been adopted is, in that sense, hypothetical. (see paras 30-34) 3. Directive 69/335 concerning indirect taxes on the raising of capital must be interpreted as meaning that the charges of a notary employed as a civil servant for the drawing up of a notarially attested act recording a transaction covered by that directive constitute taxes for the purposes of that directive where, under the relevant national legislation, notaries who are employed as civil servants are required to remit a portion of those charges to the public authority which uses that revenue for the financing of its official business, even if notaries authorised to practise are not all civil servants and are themselves owed the charges in question. (see para. 45, operative part)