62022CO0416_INF
Order of the Court (Tenth Chamber) of 19 July 2023 –EDP (Taxation on the marketing of securities)
(Case C‑416/22) (
1
)
(Reference for a preliminary ruling – Article 99 of the Rules of Procedure of the Court of Justice – Answer which may be clearly deduced from existing case-law – Directive 2008/7/EC – Article 5(2) – Indirect taxes on the raising of capital – Stamp duty on services relating to the placement on the market of bonds, public offers for subscription of shares and offers to repurchase bonds)
1.
Tax provisions – Harmonisation of laws – Indirect taxes on the raising of capital – Directive 2008/7 – Transactions not subject to indirect tax – Issue and making available on the market of debentures or other negotiable securities – Concept of ‘formalities relating thereto’ – Financial intermediation services consisting of the publication of offers to repurchase or purchase bonds, the placement on the market and subscription of new bonds and the subscription of new shares with a view to increasing share capital – Not included
(Council Directive 2008/7, Art. 5(2)(b))
(see paragraphs 28, 29)
2.
Tax provisions – Harmonisation of laws – Indirect taxes on the raising of capital – Directive 2008/7 – Transactions not subject to indirect tax – Issue and making available on the market of shares or bonds – Concept – Financial intermediation services on the equity market or bond market as an integral part of an overall capital-raising transaction – Included
(Council Directive 2008/7, Art. 5(2)(a) and (b))
(see paragraphs 34, 35)
3.
Tax provisions – Harmonisation of laws – Indirect taxes on the raising of capital – Directive 2008/7 – Duties and value added tax – Tax on the transfer of securities – Repurchase of bonds equivalent to the repayment of a loan raised by the issue of debentures – Tax not applicable – Purchase of bonds not resulting in the definitive extinguishment of the debt which those bonds represent – Tax applicable
(Council Directive 2008/7, Art. 6(1)(a))
(see paragraphs 36, 37)
4.
Tax provisions – Harmonisation of laws – Indirect taxes on the raising of capital – Directive 2008/7 – Transactions not subject to indirect tax – Stamp duty on the remuneration received by a banking institution performing financial intermediation services on the negotiable securities market – Not permissible – Obligation of the company issuing the securities to make use of the services of a third party – Irrelevant
(Council Directive 2008/7, Art. 5(2)(a) and (b))
(see paragraphs 42, 43, operative part)
Operative part
Article 5(2) of Council Directive 2008/7/EC of 12 February 2008 concerning indirect taxes on the raising of capital
must be interpreted as precluding national legislation which provides for the levying of stamp duty on the remuneration which a capital company pays to a number of banking institutions to which it has entrusted financial intermediation services for the purposes of, first, the publication of offers to repurchase or purchase bonds resulting in the definitive extinguishment of the debt which those bonds represent, second, the placement on the market and subscription of new bonds and, third, the subscription of new shares with a view to increasing its share capital, irrespective of whether the companies issuing the securities in question are under a legal obligation to make use of the services of a third party or have chosen to do so of their own accord.
(
1
)	OJ C 389, 10.10.2022.