Opinion of the Advocate General — ECLI:EU:C:2012:7
Date: 2012-01-12
Language of the case: Italian
Subject matter: Taxation;Indirect taxation
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary of the Judgment 1. Preliminary rulings — Reference to the Court — National court or tribunal within the meaning of Article 267 TFEU — Definition — Court called upon to make a decision of a judicial nature (Art. 267 TFEU) 2. Tax provisions — Harmonisation of laws — Indirect taxes on the raising of capital — Transactions not subject to indirect tax (Council Directive 2008/7, Art. 5(1)(c)) 1. In order to determine whether a body making a reference is a ‘court or tribunal’ within the meaning of Article 267 TFEU, which is a question governed by European Union law alone, the Court takes account of a number of factors, such as whether the body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes, whether it applies rules of law and whether it is independent. In addition, a national court may refer a question to the Court only if there is a case pending before it and if it is called upon to give judgment in proceedings intended to lead to a decision of a judicial nature. That is so where the insolvency judge of the Tribunale di Cosenza is called upon to give a decision of a judicial nature in order to decide a dispute in inter partes proceedings. The function of the insolvency judge is, on the basis of a draft statement of liabilities drawn up by the administrator of the bankrupt company, to determine, on application by the creditors, which debts are to be included in the liabilities. In addition, both the administrator and the other interested parties can challenge, before the insolvency judge, an application by a creditor for a debt to be included in the liabilities. Finally, in the absence of a challenge, a decision of the insolvency judge refusing to include a debt in the liabilities has binding legal effects. Moreover, the administrator and the creditors can submit written and oral observations to the insolvency judge. (see paras 20,21, 23-25) 2. Article 5(1)(c) of Directive 2008/7 concerning indirect taxes on the raising of capital must be interpreted as not precluding a duty payable annually by all undertakings on account of their registration in the register of undertakings kept by the chambers of commerce, industry, crafts and agriculture, even if that registration has constituent effect for capital companies and even if the duty is also payable by those companies for the period during which they only carry on activities preparatory to operating a business. The event which gives rise to such an annual duty consists not in the registration of the company or the legal person which owns the undertaking but in the registration of the undertaking itself. It is a duty which affects, on the basis of their turnover, all entities operating for profit. Such a duty is unrelated to the legal form of the entity which owns the undertaking, as it affects both undertakings which take the form of capital companies within the meaning of Article 2 of Directive 2008/7 and undertakings which take another legal form, in particular those owned or operated individually by natural persons. Moreover, the fact that the annual duty is a proportion of the undertaking’s turnover means that the payment of the duty cannot be a more burdensome formality for an undertaking which has adopted the legal form of a capital company than for one which takes a different legal form. Such an annual duty is thus not linked to formalities to which capital companies may be subject by reason of their legal form. (see paras 34, 37, 43, operative part)