Case C‑524/13
Eycke Braun
v
Land Baden-Württemberg
(Request for a preliminary ruling from the Amtsgericht Karlsruhe)
(Reference for a preliminary ruling — Taxation — Directive 69/335/EEC — Indirect taxes on the raising of capital — Article 10(c) — Conversion of a capital company into a different type of capital company not involving any increase in capital — Fees demanded for the drawing up of a notarial act recording that conversion)
Summary — Judgment of the Court (Second Chamber), 3 July 2014
1.        Questions referred for a preliminary ruling — Jurisdiction of the Court — Limits — Question manifestly without relevance
(Art. 267 TFEU)
2.        Harmonisation of fiscal legislation — Indirect taxes on the raising of capital — Conversion of a capital company into a different type of capital company not involving any increase in capital — Notarial fees demanded for the drawing up of a notarial act recording that conversion — National legislation providing for the payment to the Treasury of a share of the fees charged by the notary employed as a civil servant — Unlawful
(Council Directive 69/335, Arts 4(1)(c) and (3)(a), 10(c) and 12(1)(e))
1.        See the text of the decision.
(see paras 22-24)
2.        Article 10(c) of Directive 69/335 concerning indirect taxes on the raising of capital must be interpreted as precluding national legislation which provides that the Treasury is to receive a share of the fees charged by a notary employed as a civil servant when he draws up a notarial act recording a transaction concerning the conversion of a capital company into a different type of capital company, and which does not lead to an increase in the capital of the company making the acquisition or changing its legal form.
By contrast, that article does not prohibit a notary employed as a civil servant from receiving, when he draws up such attested acts, fees ultimately owed to him in so far as those fees are paid by way of fees or dues within the meaning of Article 12(1)(e) of Directive 69/335.
First, notarial fees must be classed as ‘tax’ for the purposes of Directive 69/335 where they are charged for a transaction covered by that directive by notaries who are employed as civil servants and are, at least in part, paid to the public authority employing the notaries as civil servants and used to finance the public obligations of that authority.
Secondly, since the conversion of capital companies into a different type of capital company must, under that legislation, be made by notarial act, that obligation must be regarded as a formality which is necessary for carrying on the business of the capital company thus converted. The drawing up of such notarial acts is thus a prior formality to which a capital company is subject by reason of its legal form, within the meaning of Article 10(c).
It is clear from Article 4(3)(a) of Directive 69/335 that the Member States may not charge capital duty on ‘the conversion of a capital company into a different type of capital company’. That provision necessarily concerns conversions of companies without any increase in capital. Conversion with an increase in capital is covered by Article 4(1)(c) of the directive. However, the objective pursued by Article 4(3)(a) of Directive 69/335 would be compromised if, on the conversion of a capital company into a different type of capital company, other taxes with the same effect as capital duty could be charged.
(see paras 27, 30, 33, 35-37, operative part)