Opinion of the Advocate General — ECLI:EU:C:2005:390
Date: 2007-03-08
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 Tax provisions – Harmonisation of laws – Indirect taxes on the raising of capital (Council Directive 69/335, Arts 10(c) and 12(1)(a) and (e)) Article 10(c) of Directive 69/335 concerning indirect taxes on the raising of capital precludes the charging of notarial fees for the authentication of a transfer of shares in a company made as a contribution in the course of an increase in the share capital of a capital company, in a system characterised by the fact that notaries are employed as civil servants and that the fees are, at least in part, paid to the State to subsidise public expenditure. The fact that notaries are themselves creditors of the fees in question and that the part which they have to transfer to the State is relatively moderate, has no effect on the classification of the fees as a ‘tax’ within the meaning of Directive 69/335. Those fees cannot constitute a tax on the transfer of securities within the meaning of Article 12(1)(a) of Directive 69/335. That provision must be strictly interpreted and cannot be understood as extending to taxes other than ‘duties on the transfer of securities’ in the proper sense of the term. Nor do those fees constitute ‘duties paid by way of fees or dues’ within the meaning of Article 12(1)(e) of Directive 69/335, since their amount increases directly, without limit, in proportion to the value of the shares transferred and thus to the underlying economic transaction. Only remuneration the amount of which is calculated on the basis of the cost of the service rendered can be qualified as ‘duties paid by way of fees or dues’. By contrast, where the amount payable is wholly unrelated to the cost of the service in question or is calculated, not by reference to the costs of the transaction for which it constitutes the consideration, but to all the operating and capital costs incurred by the administrative body, it must be regarded as a tax prohibited under Articles 10 and 11 of that directive. (see paras 44, 46, 58-59, 62, 64-66, operative part)