Information;Order — ECLI:EU:C:2023:603
Date: 2023-07-19
Language of the case: Portuguese
Court formation: Tenth Chamber
Subject matter: Taxation;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Portugal

Summary C-335/22 – 1 
Case C-335/22 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
23 May 2022 
Referring court: 
Tribunal Arbitral Tributário (Centro de Arbitragem 
Administrativa – CAAD) (Portugal) 
Date of the decision to refer: 
19 May 2022 
Applicant: 
A, S.A. 
Defendant: 
Autoridade Tributária e Aduaneira 
  
Subject matter of the main proceedings 
This request for a preliminary ruling has been made in proceedings between A, 
S.A. (‘A’), and the Autoridade Tributária e Aduaneira (Tax and Customs 
Authority; ‘the AT’), in which the former is seeking to have the decision 
dismissing its appeal and the calculations of the imposto do selo (stamp duty; ‘IS’) 
for 2018 declared void, and to obtain repayment of the sum paid, together with 
late payment interest. 
Subject matter and legal basis of the request 
A is a credit institution registered as a financial intermediary which, in that 
capacity, acts in the issuing of securities and provides securities placement 
services to various issuers. It charges a placement fee for that service. The 
invoices for placement fees issued in 2018 included IS calculated in accordance 
with point 17(3)(4) of the Tabela Geral do Imposto do Selo (General IS Schedule; 
‘the TGIS’), and a total amount of EUR 499 491.30 was paid to the State. A took 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C -335/22 
 
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the view that the tax did not apply and therefore filed an appeal, which was 
dismissed. 
Questions referred for a preliminary ruling 
1. Can Article 5(2)(b) of Council Directive 2008/7/EC of 12 February 2008 be 
interpreted as precluding the application of the imposto do selo (stamp duty) 
to fees for financial intermediation services provided by a bank in 
connection with the placement of securities – bonds and commercial 
papers – issued by various commercial companies, as part of which services 
the applicant is under an obligation to do all that it can, identifying and 
making contact with investors, to distribute the securities, obtain orders for 
subscription or acquisition and, in some cases, acquire the securities on 
offer? 
2. Does the answer to the first question referred differ depending on whether 
the provision of the financial services is a legal requirement or merely 
optional? 
Provisions of EU law relied on 
Council Directive 2008/7/EC of 12 February 2008 concerning indirect taxes on 
the raising of capital (OJ 2008 L 46, p. 11): Articles 5 and 6. 
Provisions of national law relied on 
Decreto-Lei n.º 287/2003 de 12 de novembro, que altera o Código do Imposto do 
Selo (Decree-Law No 287/2003 of 12 November 2003 amending the Stamp Duty 
Code): Article 1 and item 17 of the TGIS. 
‘Article 1 
Scope 
1 – [IS] is payable on all acts, contracts, documents, securities and other events or 
legal situations established in the General Schedule, including transfers of assets 
for no consideration. 
… 
Item 17: 
17. Financial transactions: 
… 
A 
 
3 
17.3 Transactions performed or brokered by credit institutions, financial 
corporations or other entities deemed by law to be such institutions or 
corporations, and any other financial institution – on the amount charged: 
… 
17.3.4 – Other fees and charges for financial services, including charges on card 
payment transactions – 4%.’ 
Brief presentation of the facts and procedure in the main proceedings 
1 A is a credit institution which has operated in Portugal since February 1983 and 
which was known until 2015 as Banco B, S.A. It is authorised as a bank by the 
Bank of Portugal and registered as a financial intermediary with the Comissão de 
Mercado de Valores Mobiliários (Securities Market Commission; ‘the CMVM’). 
2 A’s corporate purpose is to engage in banking activities, which comprise all 
operations which banks are permitted to perform by law, and to acquire shares in 
companies with different purposes. 
3 In the period from 1 September to 31 December 2018, in the course of its 
activities, A took part, as a financial intermediary, in several issues of negotiable 
securities (bonds and commercial papers), providing placement services for those 
securities to various issuers (commercial companies). 
4 As part of these placement services, A is under an obligation to do all that it can to 
distribute the securities, by obtaining orders for subscription or acquisition; in 
some cases it may acquire the securities on offer, in which case it undertakes to 
place them at its own risk, on the terms and within the timeframes agreed with the 
issuer or seller. The provision of placement services also involves making contact 
with investors. 
5 In return for placing the negotiable securities issued by the commercial companies 
in both public and private offerings, A received a placement fee (agency fee – 
bond placement). 
6 In the period from 1 September to 31 December 2018, A issued 10 invoices for 
the aforementioned placement fees, on which IS was calculated at a rate of 4% in 
accordance with item 17(3)(4) of the TGIS and paid to the State. 
7 In A’s view, IS was not payable on the placement fees and, on 15 October 2020, it 
lodged an appeal with the tax authority against the relevant tax calculations, 
seeking to have them annulled and to obtain repayment of the tax paid, in the 
amount of EUR 499 491.30. 
8 The appeal was dismissed by decision of 28 December 2020. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C -335/22 
 
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Main of the parties in the main proceedings 
9 A takes the view that it erred in calculating and paying the disputed IS, because 
there was no liability for the tax; its argument is based on the express prohibition 
on indirect taxation on the raising of capital established in Article 5(1)(b) of 
Council Directive 2008/7/EC of 12 February 2008 concerning indirect taxes on 
the raising of capital (‘the Directive’), which, in A’s view, requires that 
item 17(3)(4) of the TGIS be interpreted narrowly. 
10 The fact that the AT dismissed its appeal demonstrates that it did not properly 
understand the capital-raising transactions and placement services in question. 
11 According to the AT, there is no such illegality as claimed by A. IS would not be 
chargeable on the issue of bonds and commercial papers if the commercial 
companies (A’s clients) were to undertake the issue themselves direct, since it 
would not come within the scope of item 17(1) of the relevant General Schedule. 
12 However, in the situation under consideration, those companies engaged A to 
provide that service, meaning that the placement fees were subject to IS, because 
the requirements in point 17(3)(4) of the General Schedule were met in terms of 
both the subject matter and persons involved, in accordance with Article 1(1) of 
the Código do Imposto do Selo (Stamp Duty Code). 
13 It adds that the charges in connection with contracts for the issue of bonds and 
commercial papers, and in particular the fees charged by A, cannot be regarded as 
falling within the scope of the Directive, since the securities placement service in 
question does not fall within Article 5(2)(b) of the Directive. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
14 The issue in these proceedings is solely to determine whether or not IS is 
chargeable on the placement fees charged by A in connection with the contracts 
for the issue of bonds and commercial papers, having regard to item 17(3)(4) of 
the TGIS and Article 1(1) of the Stamp Duty Code and whether they fall within 
the prohibition in Article 5(2)(b) of the Directive. 
15 The AT considers that, in the light of point 17(3)(4) of the General Tariff and 
Article 1(1) of the Stamp Duty Code, IS must be chargeable on the fees at issue 
charged by A. The AT also considers that it is not contrary to the Directive to 
apply the tax because it does not fall within the prohibition in Article 5(2)(b), 
since the marketing of negotiable securities by a bank which is separate from the 
issuing entity cannot be classed as a capital increase, bearing in mind that the use 
of financial intermediaries is not a legal requirement but simply an option 
available to issuing institutions. Lastly, the AT states that, even if such fees did 
fall within the scope of Article 5(2)(b) of the Directive, the situation is covered by 
the exception provided for in Article 6(1)(f) of the Directive. 
A 
 
5 
16 In A’s view, the issue that arises is that charging IS in accordance with a literal 
interpretation of the national provisions is not compliant with Article 5(2)(b) of 
the Directive, given the breadth of this provision and the interpretation given by 
the Court of Justice in its judgment of 19 October 2017, Air Berlin, C-573/16. 
17 In this context, A states that the placement fees in question must be treated in the 
same way – that is, not be subject to the duty – as the issuing of debt securities, 
including the relevant interest, since to do otherwise may lead to inconsistency in 
the application of the Directive.