Provisional text
OPINION OF ADVOCATE GENERAL
BIONDI
delivered on 23 April 2026 (1)
Case C‑197/25
A. sp. z o.o.
v
Dyrektor Izby Administracji Skarbowej w Zielonej Górze,
with the participation of:
Rzecznik Małych i Średnich Przedsiębiorców (Ombudsman for Small and Medium-sized Enterprises, Poland),
Prokuratura Krajowa (National Public Prosecutor’s Office, Poland)
(Request for a preliminary ruling from the Naczelny Sąd Administracyjny (Supreme Administrative Court, Poland))
( Reference for a preliminary ruling – Directive 2008/7/EC – Indirect taxes on the raising of capital – Conversion of a partnership operating for profit into another partnership operating for profit – Article 2(2) – Certain entities deemed to be capital companies – Article 9 – Possibility for Member States to derogate from regarding such entities as equivalent to capital companies – Scope – Article 5(1)(a) and Article 7(1) – Concept of ‘capital duty’ – Article 3 – Presence of a contribution of capital )
I.      Introduction
1.        This request for a preliminary ruling, submitted by the Naczelny Sąd Administracyjny (Supreme Administrative Court, Poland), the referring court, concerns the interpretation of Article 9 of Council Directive 2008/7/EC of 12 February 2008 concerning indirect taxes on the raising of capital. (2) In summary, the referring court questions whether the application of an indirect tax to a transaction involving the conversion of a partnership operating for profit into another partnership operating for profit is compatible with that directive, as well as the scope of the possibility given to the Member States by that article to derogate, for the purposes of capital duty, from regarding such entities as equivalent to capital companies. In order to give an answer to the question referred for a preliminary ruling, it is necessary for the Court of Justice to examine the interplay between various provisions of Directive 2008/7.
2.        The request for a preliminary ruling has arisen in the context of a dispute pending before the referring court between the Polish company A. sp. z o.o. (‘Company A.’) and the Polish tax authority. (3) The dispute concerns that authority’s rejection of the application for a refund submitted by Company A. in respect of the payment of the tax on civil law transactions (4) for the conversion of that company from a limited partnership under Polish law (spółka komandytowa) into a general partnership (spółka jawna) under Polish law.
3.        The referring court has established that, following an amendment to the founding document by way of a notarial deed dated 18 December 2020, Company A. was converted from a limited partnership into a general partnership. In accordance with the principle of continuity applicable to transactions of this kind under Polish law – whereby, in the event of a company’s conversion, the legal entity remains the same – the transaction did not result in the creation of a new entity, but merely entailed a change in Company A.’s legal form by means of an amendment to its founding document.
4.        It further emerges from the order for reference that the conversion had the following characteristics: first, it did not result in any changes to the partners’ profit shares; second, it did not result in any changes to the partners’ contributions, which were determined in the same amount and form as provided for in the founding document of the limited partnership; third, there were no changes in the composition of the partners; fourth, at the time of the conversion, the partners did not make any further contributions, whether in cash or in kind; fifth, the entire assets of the company being converted constituted the assets of the company resulting from the conversion. (5)
5.        The Polish tax authority made that conversion subject to the tax on civil law transactions. That authority held that where the assets of the partnership resulting from the conversion exceed those of the company being converted – that is to say, in the case at hand, the limited partnership – which had previously been subject to the aforementioned tax, that excess, having not previously been taxed, is subject to the tax on civil law transactions. The Polish tax authority therefore taxed the difference between the value of the assets contributed to the general partnership and the value of the limited partnership’s assets that had already been taxed.
6.        Company A.
has brought an appeal before the referring court against the judgment of the court of first instance, (6) which dismissed the action brought by that company against the decision taken by the tax authority. That company has contested, inter alia, the finding that the conversion from a limited partnership to a general partnership resulted in an increase in the assets of the company and that the applicant was therefore required to pay the tax on civil law transactions on the surplus assets acquired by the limited partnership from its formation until the time of the conversion.
7.        Having been seised of the matter, the referring court observes, first of all, that the tax in question, in so far as it provides for the taxation of civil law transactions relating to constituent instruments and alterations thereto, constitutes a tax on the raising of capital within the meaning of Directive 2008/7.
8.        It is also apparent from the order for reference and the information available to the Court that both the general partnership under Polish law and the limited partnership under Polish law, although not falling within the definition of a capital company within the meaning of Article 2(1) of Directive 2008/7, (7) may be deemed to be capital companies within the meaning of Article 2(2) of that directive, which provides that ‘for the purposes of this Directive, any other company, firm, association or legal person operating for profit shall be deemed to be a capital company’.
9.        In that context, the referring court considers that it is necessary to determine whether the Republic of Poland has made use of the possibility provided for by Article 9 of Directive 2008/7, pursuant to which ‘Member States may for the purposes of levying capital duty choose not to regard as capital companies the entities referred to in Article 2(2)’.
10.      The referring court considers that, if the Republic of Poland has not made use of that possibility, the general partnership under Polish law will then be regarded as a capital company within the meaning of Article 2(2) of Directive 2008/7. In that case, the conversion in question will be exempt from the tax on civil law transactions pursuant to Article 5(1)(d)(i) of that directive. The latter of those provisions requires Member States not to subject ‘capital companies to any form of indirect tax whatsoever in respect of [transactions consisting in the] alteration of the constituent instrument or regulations of a capital company, and in particular … the conversion of a capital company into a different type of capital company’. Conversely, if the Republic of Poland has exercised the discretion granted to it under Article 9 of Directive 2008/7, it would appear well founded to conclude that not regarding
the entities referred to in Article 2(2) of that directive as capital companies would mean that Member States are free to choose whether to subject those entities to capital duty.
11.      In light of the aforementioned doubts as to interpretation, the referring court decided to stay the proceedings pending before it and to refer the following question to the Court of Justice for a preliminary ruling:
‘Must Article 9 of [Directive 2008/7],
which allows a Member State to choose not to recognise entities operating for profit referred to in Article 2(2) of [that] directive, such as general partnerships, as capital companies[,]
be interpreted [as meaning] that that Member State is also free to choose whether or not to levy capital duty on such entities?’
II.    Analysis
12.      By its single question referred for a preliminary ruling, the referring court is essentially asking the Court of Justice to interpret Article 9 of Directive 2008/7 and to determine the scope of the discretion granted to Member States by that provision to derogate from regarding such entities as capital companies, as laid down in Article 2(2) of that directive.
13.      In order to answer the question referred, it is therefore necessary to interpret Article 9 of Directive 2008/7. According to settled case-law, in interpreting a provision of EU law, it is necessary to consider not only its wording but also the context in which it occurs and the objectives pursued by the rules of which it forms part, and, if appropriate, the origins of those rules. (8)
14.      From a literal point of view, it should first of all be noted that Article 9 of Directive 2008/7 provides that ‘Member States may for the purposes of levying capital duty choose not to regard as capital companies the entities referred to in Article 2(2)’.
15.      Pursuant to Article 2(2) of Directive 2008/7, ‘for the purposes of this Directive, any other company, firm, association or legal person operating for profit shall be deemed to be a capital company.’ (9)
16.      It is clear from the wording of Article 9 of Directive 2008/7 that that article thus offers Member States the possibility to derogate from regarding the entities referred to in Article 2(2) of that directive as capital companies for the purposes of applying capital duty. Consequently, once that option to derogate – which is not subject to any specific conditions – has been exercised, Member States are free to lay down rules governing the application of capital duty to such entities (10) in accordance with the other provisions of Directive 2008/7, in particular Chapter III thereof, and, more generally, with EU law.
17.      However, it should be noted that Article 2(2) and Article 9 of Directive 2008/7 do not coincide as to their scope. Indeed, whilst Article 2(2) of that directive deems the entities in question to be capital companies ‘for the purposes of this Directive’,
Article 9
thereof allows Member States to derogate from that provision only ‘for the purposes of levying capital duty’.
18.      Accordingly, the possibility given to Member States by Article 9 of Directive 2008/7 to derogate from the classification provided for in Article 2(2) of that directive is more limited in scope than the classification set out by that latter provision: the classification referred to in Article 2(2) of Directive 2008/7 concerns the entirety of the directive’s provisions; the possibility given by Article 9 of that directive to derogate from that classification is, by contrast, restricted to ‘the purposes of levying capital duty’.
19.      It is therefore necessary to determine precisely the more limited scope of the possibility for derogation given to the Member States by Article 9 of Directive 2008/7.
20.      In that regard, I note that the concept of ‘capital duty’ (11) is explicitly defined in Directive 2008/7, and more specifically in Article 7(1) of that directive.
21.      That provision is worded as follows: ‘notwithstanding Article 5(1)(a), a Member State which as at 1 January 2006 charged a duty on contributions of capital to capital companies, hereinafter “capital duty”, may continue to do so provided that it complies with Articles 8 to 14’.
22.      It therefore follows expressly from that article that the ‘capital duty’ referred to in Article 9 of Directive 2008/7 concerns ‘contributions of capital’. (12) Such ‘contributions of capital’ are defined in Article 3 of that directive, which sets out which transactions constitute contributions of capital for the purposes of the directive.
23.      ‘Contributions of capital’ are also referred to in Article 5(1)(a) of Directive 2008/7, which prohibits any form of indirect tax on ‘contributions of capital’. Moreover, by stipulating that it applies ‘notwithstanding Article 5(1)(a)’ of that directive, Article 7(1) of the directive makes it clear that it constitutes an exception to that specific provision.
24.      It is therefore clear from all those considerations that a literal interpretation of Article 9 of Directive 2008/7 leads to the conclusion that that article gives Member States the possibility not to regard the entities referred to in Article 2(2) of that directive as capital companies for the purposes of levying capital duty, thereby leaving the Member States free to regulate the application of that duty to those entities, provided that they comply with the other provisions of Directive 2008/7 and, more generally, with EU law. The scope of that possibility to derogate is, however, limited to the levying of capital duty on contributions of capital, and therefore only to cases in which capital duty is levied on one of the transactions defined in Article 3 of that directive, such levying being prohibited under Article 5(1)(a) thereof. Consequently, the option provided for in Article 9 of that directive does not concern any of the other transactions in respect of which Directive 2008/7 prohibits the imposition of indirect tax and, in particular, does not concern any of the transactions referred to in Article 5(1)(b) to (e) thereof. (13)
25.      That interpretation is confirmed by both a systematic and a teleological analysis, as well as by the origins of the provision.
26.      From a systematic point of view, Article 9 of Directive 2008/7 falls under Chapter III of that directive, entitled ‘Special provisions’.
27.      As is apparent from the first article thereof, namely Article 7 of Directive 2008/7, as referred to in point 21 above, Chapter III of that directive contains special provisions concerning the exception to the general prohibition on subjecting capital companies (including, in principle, the entities referred to in Article 2(2) thereof) to any form of indirect tax on contributions of capital, that general prohibition being laid down by Article 5(1)(a) of the directive.
28.      Article 7
of Directive 2008/7 allows Member States which were already charging (as at 1 January 2006) a duty on contributions of capital to continue to do so, by way of exception to Article 5(1)(a) of that directive, provided that Articles 8 to 14 are complied with, that is to say all the provisions of Chapter III of the directive, including Article 9 thereof.
29.      The fact that Article 9 of Directive 2008/7 is included in the chapter laying down the rules with which Member States must comply if they continue to levy capital duty confirms that the scope of that article is limited to the tax on the contributions of capital referred to in Article 5(1)(a) of that directive.
30.      From a teleological perspective, it can be seen from recitals 2 to 4 of Directive 2008/7 that that directive is intended to harmonise the legislation on indirect taxes on the raising of capital, in order to eliminate, as far as possible, factors which may distort conditions of competition or hinder the free movement of capital, and thus to ensure the smooth functioning of the internal market. (14)
31.      Its fundamental objective, in light of which it must primarily be interpreted, is therefore to promote the free movement of capital, which is considered essential to the creation of an economic union whose characteristics are similar to those of a domestic market. (15) Directive 2008/7 seeks to limit as far as possible the negative effects of capital duty on the free movement of capital and conditions of competition within the European Union, and to bring about the abolition of indirect taxes on the raising of capital. (16)
32.      As is apparent from recitals 5 and 6 thereof, Directive 2008/7 represented a compromise solution. The best solution for attaining those objectives would have been to abolish capital duty outright. However, the losses of revenue which would have resulted from the immediate application of such a measure was deemed unacceptable for Member States which, at the time the directive was adopted, were applying capital duty. In that context, those Member States were given the opportunity to continue to subject the transactions covered by Directive 2008/7 to capital duty, but under the conditions laid down in that directive, specifically in Chapter III thereof.
33.      However, it is clear from those recitals that the aforementioned compromise solution concerned solely the tax on the contributions of capital referred to in Article 3, Article 5(1)(a) and Article 7(1) of Directive 2008/7. By contrast, it did not apply to other forms of indirect taxes on the raising of capital prohibited by that directive, and in particular those referred to in Article 5(1)(b) to (e) thereof.
34.      The teleological analysis therefore confirms the conclusion drawn from the literal and systematic analysis, whereby Article 9 of Directive 2008/7 applies exclusively to the tax on the contributions of capital referred to in
Article 5(1)(a) of that directive.
35.      Lastly, and for the sake of completeness, it is worth noting that the origin of Directive 2008/7 further confirms that conclusion. Indeed, the Commission’s proposal explicitly explained that ‘Article 7
determines the term “capital duty” as a duty levied on contributions of capital to capital companies. …
Only the transactions referred to in Article 5(1)(a), that is contributions of capital, may be subject to capital duty’. (17)
36.      In conclusion, the exception provided for by Article 9 of Directive 2008/7, under which Member States may decide not to regard the entities referred to in Article 2(2) of that directive – that is to say, in the case at hand, partnerships operating for profit – as capital companies, thereby retaining the freedom to regulate the application of capital duty to such entities, applies exclusively for the purposes of taxing contributions of capital as defined in Article 3 of Directive 2008/7, which is prohibited under Article 5(1)(a) thereof.
37.      That said, and subject to the assessment by the referring court, which is responsible for the legal characterisation of the facts, it does not appear from the information in the case file submitted to the Court that, in the case at hand, the taxation, under the tax on civil law transactions,
of Company A. at issue can be classified as a tax on contributions of capital within the meaning of Article 5(1)(a) of Directive 2008/7.
38.      Indeed, the transaction which gave rise to the tax liability, namely the conversion of Company A. from a limited partnership into a general partnership, as described in points 3 and 4 of this Opinion, does not appear to have given rise to any transaction that could be regarded as a ‘contribution of capital’ within the meaning of Article 3 of Directive 2008/7.
39.      Article 3 of Directive 2008/7 lists ten categories of transactions that must be classified as ‘contributions of capital’ to capital companies, within the meaning of that directive. (18)
40.      In particular, point (b) of that article – pursuant to which there is a ‘contribution of capital’ in the case of ‘the conversion into a capital company of a company, firm, association or legal person which is not a capital company’ – does not appear to be relevant. Indeed, in the case at hand, there is a conversion of a partnership treated as a capital company for the purposes of Directive 2008/7 into another partnership treated as a capital company for the purposes of that directive. (19)
41.      In addition, neither point (c) nor point (g) of Article 3 of Directive 2008/7 (20) appears to be relevant, since, as is clear from the description of the transaction set out in points 3 and 4 of this Opinion, that transaction did not lead to any increase in the share capital. Indeed, the referring court has expressly stated that the partners’ contributions of capital to the company remained exactly the same.
42.      Nor does the provision set out in point (d) of Article 3 of Directive 2008/7 – pursuant to which there is a ‘contribution of capital’ in the case of ‘an increase in the assets of a capital company by contribution of assets of any kind, in consideration not of shares in the capital or assets of the company, but of rights of the same kind as those of members, such as voting rights, a share in the profits or a share in the surplus upon liquidation’ – appear to be relevant.
43.      Indeed, it is clear from the description of the transaction set out in the order for reference that that transaction did not result in an increase in the assets of the company through the contribution of assets of any kind. Following the conversion, the assets of the converted company (the general partnership) remained exactly the same as those of the limited partnership at the time of the conversion. There is no record in the case file
of any contributions to the assets of the company by the shareholders; indeed, the referring court has ruled that there were no such contributions. It would appear – which is a matter for the referring court to ascertain – that the total amount of the assets of the company
at the time of the conversion was greater than that held by the limited partnership at the time of its incorporation, due to the underlying business, which may have led to an increase in the assets of the company. (21)
44.      The other scenarios provided for in Article 3 of Directive 2008/7 are clearly not relevant in the case at hand.
45.      If the referring court were to confirm that the conversion in question did not give rise to any transaction that could be classified as a ‘contribution of capital’ within the meaning of Article 3 of Directive 2008/7, then, in the case at hand, the Polish tax on civil law transactions could not be classified as a tax on contributions of capital within the meaning of Article 5(1)(a) and Article 7(1) of that directive. It would follow that, in view of the interpretation proposed in point 36 of this Opinion, Article 9 of Directive 2008/7 would not be relevant to the conversion at issue, and therefore no derogation from regarding the two forms of partnership in question as equivalent to capital companies for the purposes of Directive 2008/7, pursuant to Article 2(2) of that directive, would be possible.
46.      In that case, as suggested by the referring court, the transaction in question would fall within the scope of Article 5(1)(d)(i) of Directive 2008/7, which prohibits any form of indirect tax in respect of the alteration of the constituent instrument or regulations of a capital company, in particular in respect of ‘the conversion of a capital company into a different type of capital company’.
47.      This appears to be the most plausible solution based on the information available to the Court as set out in the case file. It is, however, for the referring court to clarify the facts set out above.
48.      For the sake of completeness, I would also like to point out that, should a transaction give rise to ‘contributions of capital’ within the meaning of Article 3 of Directive 2008/7, the taxation of that transaction on the basis of the tax on civil law transactions could be classified as a tax on contributions of capital within the meaning of Article 5(1)(a) of Directive 2008/7.
49.      In that case, if it were to be established that, on 1 January 2006, the date referred to in Article 7(1) of Directive 2008/7, the Republic of Poland was lawfully levying the tax on civil law transactions in respect of contributions of capital to a capital company, it would follow that that Member State could continue to levy that tax on such transactions.
50.      If, on the other hand, it were to emerge that the Member State in question had exercised the option provided for by Article 9 of Directive 2008/7, a matter much debated in Poland, (22) it would follow, in my view, in line with the interpretation I have set out in point 36 of this Opinion, that that Member State would have acquired full discretion as to whether or not to subject to capital duty civil law transactions relating to a contribution of capital to a company – such as a limited partnership or a general partnership – which it considers, by way of derogation from Article 2(2) of Directive 2008/7, should not be regarded as equivalent to a capital company for the purposes of levying capital duty.
51.      In that regard, I simply note that, in order for the Republic of Poland to have been able to exercise the option provided for by Article 9 of Directive 2008/7, it is essential that this was stated with sufficient precision and clarity so that the parties concerned were in a position to have full knowledge of the legal situation arising from the exercise of that option. (23)
III. Conclusion
52.      In the light of all the foregoing considerations, I propose that the Court answer the question referred by the Naczelny Sąd Administracyjny (Supreme Administrative Court, Poland) as follows:
Article 9 of Council Directive 2008/7/EC of 12 February 2008 concerning indirect taxes on the raising of capital
must be interpreted as meaning that, where Member States decide not to regard the entities referred to in Article 2(2) of that directive as equivalent to capital companies for the purposes of capital duty, they retain the freedom to determine the rules governing the application of that duty to such entities. Article 9
of the directive applies exclusively for the purposes of the tax on the contributions of capital referred to in Article 5(1)(a) thereof.
1      Original language: Italian.
2      (OJ 2008 L 46, p. 11).
3      The Dyrektor Izby Administracji Skarbowej w Zielonej Górze (Director of the Tax Administration Chamber, Zielona Góra, Poland).
4      Pursuant to the ustawa z dnia 9 września 2000 r. o podatku od czynności cywilnoprawnych (Law of 9 September 2000 concerning the tax on civil law transactions).
5      The ‘closing balance’ of the company being converted as at the date of conversion corresponds to the ‘opening balance’ of the company resulting from the conversion.
6      Judgment of 7 July 2002 of the Wojewódzki Sąd Administracyjny w Gorzowie Wielkopolskim (Provincial Administrative Court, Gorzów Wielkopolski, Poland).
7      With regard to the general partnership, see Section III of the order for reference. With regard to the limited partnership, the Polish Government has confirmed in court that, in principle, a limited partnership also operates for profit.
8      Judgment of 22 April 2015, Drukarnia Multipress (C‑357/13, EU:C:2015:253, paragraph 22 and the case-law cited).
9      In that regard, the Court has had occasion to clarify that the classification of the entities referred to in Article 2(2) of Directive 2008/7 as capital companies is intended to prevent the choice of a particular legal form resulting in different fiscal treatment of transactions,
which are equivalent from an economic perspective, that provision thus making it possible to cover entities which, while having the same economic function as capital companies
in the strict sense, namely the earning of a profit by the pooling of capital in a separate set of assets, do not satisfy the criteria to be a ‘capital company’ as defined in Article 2(1) of that directive. See judgment of 22 April 2015, Drukarnia Multipress
(C‑357/13, EU:C:2015:253, paragraph 26 and the case-law cited).
10      See also, to that effect, Opinion of Advocate General Jääskinen in Drukarnia Multipress (C‑357/13, EU:C:2014:2471, point 51 and the case-law cited).
11      ‘Imposta sui conferimenti’ in Italian, ‘droit d’apport’ in French, ‘Gesellschaftssteuer’ in German, ‘podatek kapitałowy’ in Polish.
12      ‘Conferimenti di capitale’ in Italian, ‘Kapitalzuführungen’ in German, ‘aportaciones de capital’ in Spanish, ‘wkłady kapitałowe’ in Polish. There is a minor linguistic inconsistency in the French version of Directive 2008/7, in which Article 3 and Article 5(1)(a) refer to ‘apports de capital’, whereas Article 7(1) simply refers to ‘un droit sur les apports’ (a duty on contributions), without specifying ‘de capital’.
13      See also, in that regard,
recital 9 of Directive 2008/7.
14      Judgment of 22 April 2015, Drukarnia Multipress (C‑357/13, EU:C:2015:253, paragraph 31). See also, in that regard, judgment of 5 June 2025, Corner and Border (C‑685/23, EU:C:2025:398, paragraph 26).
15      Judgment of 9 October 2014, Gielen (C‑299/13, EU:C:2014:2266, paragraph 20).
16      See also, to that effect, Opinion of Advocate General Jääskinen in Drukarnia Multipress (C‑357/13, EU:C:2014:2471, point 26 and the case-law cited).
17      See the proposal for a Council Directive concerning indirect taxes on the raising of capital, COM(2006) 760 final, under Article 7 (emphasis added).
18      In that regard, it should be noted that the wording of Article 3 of Directive 2008/7 appears to set out an exhaustive list, rather than one merely providing examples, of the cases considered to constitute contributions of capital within the meaning of that directive. Such an interpretation of the aforementioned list would be consistent with the Court’s settled case-law, whereby Directive 2008/7 has provided for complete harmonisation of the cases in which the Member States may levy indirect taxes on the raising of capital (see judgment of 24 February 2022, Viva Telecom Bulgaria
(C‑257/20, EU:C:2022:125, paragraph 65 and the case-law cited).
19      In that regard, I also point out that this conclusion would remain unchanged even if it were necessary to consider that Poland has exercised its option under Article 9 of Directive 2008/7 to derogate from the classification provided for in Article 2(2) of that directive. In such a case, there would be a conversion of one partnership (not regarded as a capital company) into another partnership (not regarded as a capital company), a situation which does not fall within the scope of Article 3(b) of Directive 2008/7.
20      Pursuant to points (c) and (g) of that article, a ‘contribution of capital’ occurs in the case of ‘an increase in the capital of a capital company by contribution of assets of any kind’ or in the case of ‘an increase in the capital of a capital company by capitalisation of profits or of permanent or temporary reserves,’ respectively.
21      The situation would be different if the increase in assets had occurred after the conversion, through contributions of assets or other means. The situation would be different still if the increase in the limited partnership’s assets had been due to previous contributions from the partners. However, those individual contributions – and not the subsequent conversion – might have been subject to tax under national law, provided that the criteria laid down in Directive 2008/7 (and in particular in Article 7 and Chapter III thereof) had been met.
22      See Section III of the order for reference.
23      In that regard, see, by analogy, inter alia, judgment of 10 May 2001, Commission v Netherlands (C‑144/99, EU:C:2001:257, paragraph 17 and the case-law cited).