Provisional text
OPINION OF ADVOCATE GENERAL
KOKOTT
delivered on 12 February 2026 (1)
Case C‑837/24
NOVA IBEROMOLDES – SGPS, S.A.
v
Autoridade Tributária e Aduaneira
(Request for a preliminary ruling from the Tribunal Arbitral Tributário (Centro de Arbitragem Administrativa – CAAD) (Tax Arbitration Tribunal (Centre for Administrative Arbitration), Portugal)
( Request for a preliminary ruling – Indirect taxes on the raising of capital – Contribution of shares to a company – Compatibility of a tax on transfers of immovable property with Directive 2008/7 – Transfer duty – Indirect transfer of immovable property by way of a transfer of at least 75% of the share capital in a company that owns immovable property )
I.      Introduction
1.        For the present request for a preliminary ruling, the Court must address the relatively little-known Council Directive 2008/7/EC concerning indirect taxes on the raising of capital. (2) That directive prohibits Member States from levying indirect taxes on contributions of capital.
2.        The question of interpretation to be answered appears somewhat odd, (3) as the referring court questions the permissibility of a tax on transfers of immovable property that is usually levied not only on the direct acquisition of immovable property but also on the indirect acquisition of immovable property by way of acquisition of a company or partnership owning that property. Both for reasons of equal treatment and to prevent circumvention arrangements, such taxation is in fact mandatory under tax law. In the absence of such provisions, it is likely that all immovable property would be transferred by way of contributions to capital companies, and the shares in those companies subsequently sold, to achieve an identical result in economic terms – transfer of the right of disposal over immovable property – without incurring any tax liability.
3.        Nevertheless, the tax on transfers of immovable property that is payable in respect of a contribution of capital under company law (in the form, in the present case, of the contribution in kind of shareholdings in another company, which owns immovable property) is an annoyance in particular in the context of restructuring operations. That explains the attempt to challenge it by reference to EU law (Directive 2008/7, in the present case).
4.        The Court has the opportunity here to clarify the scope of Directive 2008/7. It is undisputed that the directive does not prohibit Member States from introducing a national tax on transfers of immovable property. However, the question arises whether the abovementioned extension of the tax on transfers of immovable property to cover the transfer of shares in companies that own immovable property may infringe that directive. If so, that could make it impossible in general to levy tax on transfers of immovable property. That is because, as a rule, national law would not permit transactions which are economically identical in their effect to be treated differently – assuming that national law, as it so often does, recognises a principle of equal treatment comparable to Article 20 of the Charter. It therefore once again (4) falls to the Court to rule on the continued validity of the national (non-harmonised) tax law of the Member States – in the present case, the tax on transfers of immovable property.
II.    Legal framework
A.      European Union law
5.        Recitals 2 and 7 of Directive 2008/7 state as follows:
‘(2)      The indirect taxes on the raising of capital, namely the capital duty (the duty chargeable on contributions of capital to companies and firms), the stamp duty on securities, and duty on restructuring operations, regardless of whether those operations involve an increase in capital, give rise to discrimination, double taxation and disparities which interfere with the free movement of capital. The same applies as regards other indirect taxes with the same characteristics as capital duty and the stamp duty on securities.
…
(7)      It is inherent in the concept of an internal market that a duty on the raising of capital within the internal market by a company or firm should not be charged more than once. Accordingly, if the Member State to which the taxing right is attributed does not levy capital duty on certain or all transactions covered by this Directive, no other Member State is to exercise a taxing right in respect of those transactions.’
6.        Article 1(a) and (b) of Directive 2008/7 defines the scope of that directive as follows:
‘This Directive regulates the levying of indirect taxes in respect of the following:
(a)      contributions of capital to capital companies;
(b)      restructuring operations involving capital companies;’
7.        Article 3(a) of Directive 2008/7 reads as follows:
‘For the purposes of this Directive and subject to Article 4, the following transactions shall be considered to be “contributions of capital”:
(a)      the formation of a capital company’
8.        Article 5(1)(a) and (e) of Directive 2008/7 provides as follows:
‘1.      Member States shall not subject capital companies to any form of indirect tax whatsoever in respect of the following:
(a)      contributions of capital;
…
(e)      the restructuring operations referred to in Article 4.’
9.        Article 6(1) of Directive 2008/7 reads as follows:
‘1.      Notwithstanding Article 5, Member States may charge the following duties and taxes:
(a)      duties on the transfer of securities, whether charged at a flat rate or not;
(b)      transfer duties, including land registration taxes, on the transfer, to a capital company, of businesses or immovable property situated within their territory;
…
(f)      value added tax.’
10.      Article 7(1) of Directive 2008/7 provides as follows:
‘1.      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.’
11.      Article 8 of Directive 2008/7 provides as follows:
‘1.      Capital duty shall be charged at a single rate.
2.      The rate of capital duty applied by a Member State may not exceed the rate applied by that Member State on 1 January 2006.
Where, after that date, the Member State reduces the rate applied, it may not reintroduce a higher rate.
3.      The rate of capital duty may not in any event exceed 1%.’
B.      Portuguese law
12.      The ‘Imposto Municipal sobre as Transmissões Onerosas de Imóveis’ (municipal tax on transfers of immovable property for consideration; ‘IMT’)
was introduced into the Portuguese legal system in 2003 by means of Decreto-Lei no 287/2003 (Decree-Law No 287/2003) of 12 November 2003 (‘the IMT Code’).
13.      At the material time (2019), Article 2 of the IMT Code defined the objective and territorial scope thereof as follows:
‘1 – IMT shall be levied on transfers, for consideration, of the right of ownership, or parts of that right, over immovable property located in the national territory.
2 – For the purposes of paragraph 1, the concept of transfer of immovable property shall also include:
…
(d)      the acquisition of interests or shares
in general partnerships, limited partnerships or private limited liability companies, where those companies or partnerships are the owners of immovable property and where, by that acquisition, by amortisation or by any other means, any shareholder or partner comes to hold at least 75% of the share capital or partnership interests, or the number of shareholders or partners is reduced to a married couple or a cohabiting couple.’
14.      Article 12 of the IMT Code governs the taxable amount:
‘1 – IMT shall be levied on the value recorded in the deed or contract or, if it is greater, on the taxable value of the immovable property [(“VPT”)]. …
4 – However, the provisions of the preceding paragraphs shall be without prejudice to the following rules:
…
19.      Where the transfers referred to in Article 2(2)(d) and (e) take place, the tax shall be calculated as follows:
(a)      on the basis of the [VPT]
corresponding to the majority shareholding or interest or, where relevant, on the basis of the total value of that property; in both cases, the balance sheet value shall be used, if that is greater; …’
15.      The tax rates provided for in Article 17 of the IMT Code range from 1% to 8%, depending on the value of the immovable property.
III. Facts
16.      The starting point is a request for arbitration submitted by NOVA IBEROMOLDES – SGPS, S.A. (‘NOVA’), which is established in Lisbon (Portugal), against the Autoridade Tributária e Aduaneira (Tax and Customs Authority, Portugal; ‘the tax authority’).
17.      NOVA is a holding company (sociedade gestora de participações sociais: SGPS), incorporated on 28 March 2019 as a public limited company. NOVA’s share capital was fully paid up by means of non-cash contributions (shareholdings
held) by its sole shareholder, Iberomoldes, SGPS, S.A.
Two contributed shares in the company ‘Edilásio Carreira da Silva Lda.’ (private limited company), representing the entirety of its share capital, are relevant in the present case.
18.      At the date of the taxable event, the company ‘Edilásio Carreira da Silva Lda.’ was the owner of two properties having a VPT of EUR 140 900.00 and EUR 358 296.50.
19.      In general, transfers for consideration of the right of ownership (or parts of that right) over immovable property situated in Portuguese territory are subject to a tax on transfers of immovable property – the IMT. Under Article 2(2)(d) of the IMT Code (in the version in force in 2019), the definition of transfer of immovable property includes the acquisition of interests or shares in partnerships or companies where those partnerships or companies are the owners of immovable property and where a shareholder or partner comes to hold, by any means, at least 75% of the share capital.
20.      The tax authority (Direção de Finanças de Leiria (Tax Office, Leiria, Portugal)) carried out a tax inspection relating to IMT for the 2019 financial year, determined the net book value of the properties as at 31 March 2019, and determined the VPT in respect of IMT. For the properties owned by the company ‘Edilásio Carreira Silva Lda.’ in particular, the tax authority concluded that an amount of EUR 68 855.61 was owed in respect of IMT, plus interest in the amount of
EUR 11 024.45.
21.      On 22 September 2023, NOVA submitted the request for arbitration which has given rise to the main
proceedings, contesting the amount of IMT payable in respect of the properties belonging to the company ‘Edilásio Carreira Silva Lda.’.
22.      NOVA claims that the present case concerns the formation of a capital company (namely, NOVA itself) by means of a contribution of capital within the meaning of Article 3(a) of Directive 2008/7, which, under Article 5(1)(a) of that directive, should not be subject to any form of indirect tax whatsoever. NOVA asserts that the transfer of the shares in ‘Edilásio Carreira da Silva Lda.’, which was the form in which the contribution of capital was made and which gave rise to the assessment for IMT at issue, is not covered by the exception provided for in Article 6 of Directive 2008/7, both because ‘shares’ are not securities (for the purposes of Article 6(1)(a) of that directive) and because IMT does not constitute a ‘transfer duty’ (for the purposes of Article 6(1)(b) of that directive).
23.      The tax authority states that Directive 2008/7, on the contrary, permits that taxation under Article 6. It submits that the IMT Code includes among the transfers on which that tax is to be levied certain transactions which, directly or indirectly, are connected with the transfer of immovable property, in particular the acquisition of shares or interests in companies or partnerships. The tax authority argues that the very aim of the IMT Code is to prevent the possibility of the ownership of such property being acquired, indirectly, through the acquisition of shares or interests in companies or partnerships which have such property among their assets, without being subject to taxation.
IV.    Request for a preliminary ruling
24.      The Tribunal Arbitral Tributário (Centro de Arbitragem Administrativa – CAAD) (Tax Arbitration Tribunal (Centre for Administrative Arbitration), Portugal), which is hearing the request for arbitration, has stayed the proceedings and referred the following six questions to the Court of Justice for a preliminary ruling:
‘(1)      Must a tax (such as the IMT at issue in the present case) which is levied on transfers, for value, of the right of ownership, or parts of that right, over immovable assets, and which equates to the concept of the transfer of immovable assets any situation by virtue of which a shareholder or partner comes to hold, at least, 75% of the share capital or partnership interests in a company or partnership owning immovable assets, be regarded as an “indirect tax” on the raising of capital, for the purposes of [Directive 2008/7]?
(2)      If the first question referred is answered in the affirmative, for the purposes of that directive, must a transaction, such as that forming the subject matter of the present case, whereby a capital company, within the meaning of Article 2 of [Directive 2008/7], is formed to carry on the activity of managing holdings in companies and the entirety of the share capital is paid up by means of the contribution of holdings that the contributing company (which also carries on the activity of managing holdings in companies) had in other companies, without any other element or resource or even the entirety of the equity instruments being transferred, and in which, as consideration, the contributing company receives the entirety of the share capital in the beneficiary company, be regarded as a contribution of capital (within the meaning of Article 3 of that directive) or as a restructuring operation (within the meaning of Article 4 of that directive)?
(3)      If the first question referred is answered in the affirmative, does Article 5(1)(a) or (e) of [Directive 2008/7] preclude tax being levied on the transaction in question pursuant to Article 2(2)(d) of the IMT Code, which equates to the concept of the transfer of immovable assets the transfer of shares or interests representing at least 75% of the share capital or partnership interests in a company or partnership owning immovable assets[?]
(4)      If the third question referred is answered in the affirmative, for the purposes of Article 6(1)(a) of [Directive 2008/7], must the “limited company shares” transferred be regarded as “securities”?
(5)      If the third question referred is answered in the affirmative, for the purposes of Article 6(1)(b) or (c) of [Directive 2008/7], must IMT be regarded as a “transfer duty”?
(6)      If Article 2(2)(d) of the IMT Code is considered compatible with [Directive 2008/7], do Articles 8(3) and 11 of that directive preclude the rules laid down in Articles 12(4)(19)(a) and 17 of the IMT Code, in accordance with which a tax rate of between 1% and 8% is applied, according to the taxable amount, which is determined taking into account the reference value of the properties for tax purposes or the balance sheet book value, if that is greater?’
25.      In the proceedings before the Court, written observations were submitted by NOVA, the Portuguese Republic, the Federal Republic of Germany and the European Commission. In accordance with Article 76(2) of its rules of procedure, the Court did not deem it necessary to hold a hearing.
V.      Legal assessment
A.      The scope of Directive 2008/7
26.      The first of the six questions is a request for interpretation of the scope of Directive 2008/7. On that score, Article 5(1)(a) of Directive 2008/7 provides that Member States may not subject capital companies to any form of indirect tax whatsoever in respect of contributions of capital. Pursuant to Article 3(a) of that directive, the formation of a capital company is considered to be a contribution of capital. The formation of a capital company is what occurred in the present case.
27.      In order to come within the scope of Directive 2008/7, the national tax on transfers of immovable property (IMT, in the present case) must constitute – as the name of the directive implies – an ‘indirect tax on the raising of capital’. Pursuant to Article 1 of Directive 2008/7, such taxes include indirect taxes in respect of contributions of capital to capital companies. If IMT is not such an indirect tax, all the other questions are moot.
1.      Whether IMT is a tax on the raising of capital
28.      It is clear from recital 7
thereof that Directive 2008/7 concerns capital raised by a company or firm.
29.      The present case, by contrast, concerns a tax on transfers of immovable property. That tax is levied in respect of the transfer of the right of disposal over immovable property, usually by way of a transfer of ownership to another person, (5) and is calculated, in principle, on the basis of the price paid for the transfer. Whether such a tax on transfers of immovable property is dogmatically regarded
as a transfer tax (as understood historically), or, compared with
value added tax (VAT) (which is a general tax on consumption), as a special tax on consumption (taxation of the acquisition of a specific consumer good in the form of immovable property), may remain an open question. In any event, a tax on transfers of immovable property per se has nothing to do with taxation of capital raised or of the contribution of capital. It follows that a tax on transfers of immovable property is not a prohibited tax on contributions of capital for the purposes of Article 5 of Directive 2008/7.
2.      Whether the taxation of the indirect acquisition of immovable property is a tax on contributions of capital
30.      It is therefore necessary to determine whether the conclusion arrived at above might be different where – as in the present case – a tax on transfers of immovable property is levied in the context of the formation of a capital company and the contribution of shares.
31.      Even considering only the fiscal sovereignty of the Member States and the limited powers of the European Union in tax matters, a broad interpretation to the effect that any tax connected with contributions of capital to a company is covered by the prohibition laid down in Article 5 of Directive 2008/7 cannot be permissible. Although the Court has ruled differently with regard to the Parent-Subsidiary Directive, (6) that very broad statement is limited to that directive and cannot be applied to Directive 2008/7. That is because – as the Court has correctly pointed out in that respect – the harmonisation provided for in Directive 2008/7 does not extend to direct taxes, which are a matter for the Member States themselves, (7) such as tax on transfers of immovable property.
32.      Therefore, the determination which must be made is whether IMT is to be considered another tax with the same characteristics as capital duty and stamp duty on securities – as expressly referred to in recital 2 – and so is in fact levied on the raising of capital, or whether it is levied only in connection with the formation of a capital company but has a different object of taxation. That is relevant because Directive 2008/7 prohibits only such taxes which have the same characteristics – and therefore the same object of taxation – as capital duty. (8)
33.      Accordingly, the actual object of IMT in the specific case needs to be identified, and it must be ascertained whether IMT is also payable where shares in a company that owns immovable property are merely transferred without that resulting in the formation of a company or a contribution to the capital of the company being formed. If that is the case, then the focus is not on the raising of capital; rather, there is a different object of taxation.
34.      It is to that effect that the Court’s decision regarding the previous directive concerning indirect taxes on the raising of capital (Directive 69/335/EEC (9)) in connection with a tax on trade in securities should be understood. In that case, Spain had taxed the transfer of securities (regardless of scale) of companies where at least 50% of their
assets comprised immovable property situated in national territory. The Court correctly rejected Spain’s objection that the case in actual fact concerned the transfer of immovable property rather than the transfer of securities,(10) and instead foregrounded the event actually giving rise to the tax (the transfer of securities).
35.      That case concerned only the transfer of shares in a company owning immovable property, rather than the economic transfer of immovable property. The scale of the shareholdings acquired was therefore irrelevant. Moreover, the tax was calculated on the basis of the value of the shares, not the value of the immovable property. In the case at hand, therefore, the focus was on all transfers of shareholdings in particular companies (having certain assets). Consequently, the Court examined the tax on trade in securities with reference to the predecessor to Directive 2008/7 – and found that it was compatible with the directive. (11)
36.      Another decision of the Court along the same lines is its ruling that (the predecessor to) the directive does not cover taxation of the appreciation in value of immovable property in the context of a contribution of assets to a company’s capital, as that does not constitute capital duty. (12) Similarly, the Court in a later decision focused on the object of taxation and held that a tax which is more in the nature of a direct tax on income does not come within the scope of the directive concerning indirect taxes on the raising of capital and does not therefore constitute a prohibited tax. (13) The decision on a registration fee payable by traders follows the same line. Since the registration fee, although it concerned all capital companies which by operation of law were to be treated as traders, also applied to other legal forms (sole traders), the Court ruled that Directive 2008/7 did not preclude it. (14)
37.      The greatest similarity to the situation in the present case is apparent in the decision of the Court on the permissibility of a vehicle registration charge levied in France. (15) That charge did not come within the scope of the directive, even though it was levied on account of a merger of two capital companies, because that was only the triggering circumstance and not the object of taxation. The charge was levied in respect of the vehicle’s use on the road by another person (created by the merger), not its transfer to a capital company. (16)
38.      On closer examination of the Portuguese legislation, it may be stated – subject to the assessment of the referring court – that the focus in the present case is not the transfer of securities or of shareholdings. The object of IMT is – as both the Federal Republic of Germany and the Portuguese Republic maintain – the transfer of the right of ownership over immovable property. Indirect acquisition by way of the transfer of at least 75% of the shares or interests in a company or partnership which owns immovable property is equated to such direct acquisition of ownership.
39.      It can be assumed that the reason for drawing that equivalence is that the transfer of more than 75% of shareholdings transfers to another person the beneficial right of disposal not only over the company but also over its immovable property. The tax is thus levied on the change from one person to another of the beneficial right of disposal over immovable property, and not on any form of raising of capital. Since it is possible to transfer the beneficial power of disposal over immovable property from one person to another by way of direct acquisition (what is known as an asset deal) or by way of indirect acquisition (what is known as a share deal), it is logical that Portugal treats the two means of transferring the power of disposal in the same way under tax law.
40.      Another aspect demonstrating that IMT is not intended as a means of taxing the capital raised by the contribution or the contributed shareholdings is that the basis of assessment is not the value of the contributed company or the value of the contributed shareholdings but solely the value of the immovable property, (17) over which a new person (the acquiring company – in the present case, NOVA) now has the beneficial power of disposal. That also suggests an object of taxation that is not comparable to that of capital duty or stamp duty on securities. That is confirmed by the fact that not only a contribution to a capital company but also the acquisition of 75% of a company’s shareholdings by, for example, a natural person will trigger the tax on transfers of immovable property.
41.      I am even inclined to say that liability for tax on transfers of immovable property in connection with a share deal is mandatory having regard to
equality in the taxation of taxable persons and taxation according to ability to pay. Otherwise, liability for tax on transfers of immovable property would be relatively easy to circumvent by contributing immovable property to a capital company before its planned sale and, at some time in the future, simply transferring all shares in that company.
42.      In that respect, a rule that covers and ensures taxation of the transfer of the controlling majority in companies which own immovable property is a necessary complement to a tax on transfers of immovable property. However, if a tax on transfers of immovable property does not in itself constitute an indirect tax on contributions of capital, then a necessary complement to that tax cannot be treated any differently. Therefore, a necessary complement of that kind, which is linked to the indirect transfer of immovable property by way of the transfer of controlling shareholdings and thereby ensures equality of taxation and puts into practice the tax-law principle of taxation according to ability to pay, also cannot constitute a tax on contributions of capital.
3.      Interim conclusion
43.      Consequently, the answer to the first question is that IMT is not an ‘indirect tax on the raising of capital’ within the meaning of Directive 2008/7, with the result that it is not precluded by Article 5(1) thereof.
B.      The scope of Article 6 of Directive 2008/7
44.      That conclusion is confirmed by the exception provided for in Article 6(1)(b) of Directive 2008/7 in respect of transfer duties, which, like the exception in Article 6(1)(f), is merely declaratory in nature. Point
(f) makes it clear that Member States may charge VAT. That is because VAT is levied not on the raising of capital, like capital duty (the duty
chargeable on contributions of capital to companies and firms), but generally on the supply of goods or the provision of services.
45.      The same is true of the transfer duties referred to in Article 6(1)(b) of Directive 2008/7. They are levied in connection with certain transactions involving the transfer of immovable property, on the basis of general and objective criteria. (18) That is the situation in the present case. As I understand it, IMT is charged in connection with the transfer of legal or beneficial ownership of immovable property, on the basis of general and objective criteria,
as soon as the beneficial right of disposal over immovable property passes to another person.
46.      Contrary to the view expressed by NOVA and the Commission, (19) a tax on transfers of immovable property which is triggered by the transfer of the right of disposal over immovable property constitutes a transfer duty within the meaning of Article 6(1)(b) of Directive 2008/7 even where it is levied only on the indirect transfer of ownership (share deal) over the immovable property. As already set out in points 40 and 41 above, the requirement of equality of taxation may even make the taxation of indirect transfers of ownership
mandatory.
47.      After all, a different interpretation would also result in inconsistency with Article 6 of the ATAD Directive, (20) which expressly requires Member States to prevent arrangements for circumventing tax law and to introduce a general anti-abuse rule in (non-harmonised) corporate tax law. It would be contradictory if Directive 2008/7 were to be interpreted as prohibiting Member States from taxing indirect transfers of immovable property in order to prevent the circumvention of tax on transfers of immovable property by way of transfers of companies owning immovable property.
48.      Article 6(1)(b) of Directive 2008/7 therefore also covers indirect transfer duties, such as IMT in the present case, and on a declaratory basis excludes them from the scope of the directive. All the other questions referred for a preliminary ruling – including the sixth question – are therefore moot.
C.      Sixth question: Whether the permitted rate of tax has been exceeded
49.      By its sixth question, the referring court seeks to ascertain whether, in the event that IMT is compatible with Directive 2008/7, Article 8 of that directive gives rise to a limitation on the rate of IMT.
50.      That question seems to me to be based on the already refuted premiss that IMT comes within the scope of Directive 2008/7 and the prohibition laid down in Article 5 thereof. Since it does not, Article 8 of that directive cannot affect the rate of IMT. Consequently, a tax on transfers of immovable property – which applies to the (direct or indirect) transfer of the right of disposal over immovable property – may be charged at a higher rate.
VI.    Conclusion
51.      I therefore propose that the questions referred by the Tribunal Arbitral Tributário (Centro de Arbitragem Administrativa – CAAD) (Tax Arbitration Tribunal (Centre for Administrative Arbitration), Portugal) be answered as follows:
1.      A tax which is levied on transfers, for consideration, of the right of ownership, or parts of that right, over immovable property, is not to be regarded as an ‘indirect tax on the raising of capital’ within the meaning of Directive 2008/7/EC of 12 February 2008 concerning indirect taxes on the raising of capital. The same applies where any situation by virtue of which a shareholder comes to hold at least 75% of the shares in a company owning immovable property is treated in the same way as a transfer of immovable property.
2.      Article 6(1)(b) of Directive 2008/7 makes it clear that ‘transfer duties’ – such as a tax on transfers of immovable property – are not covered by that directive. The taxation of an indirect change of ownership (transfer of the right of disposal over immovable property on the basis of a majority shareholding or interest in the company which owns the property) also amounts to a transfer duty. Article 8 of Directive 2008/7 therefore does not give rise to any limitation on the rate set for tax on transfers of immovable property.
1      Original language: German.
2      Council Directive of 12 February 2008 (OJ 2008 L 46, p. 11).
3      For the Bundesfinanzhof (Federal Fiscal Court) in Germany, the answer is so clear that it did not make a reference for a preliminary ruling to the Court of Justice – see judgment of the Bundesfinanzhof (Federal Fiscal Court) of 19 December 2007 – II R 65/06, BStBl. II 2008, 489, paragraph 24, with reference to the judgment of the Court of Justice of 11 December 1997, Locamion (C‑8/96, EU:C:1997:601).
4      To take a recent decision as a basis (judgment of 19 December 2024, Credit Suisse Securities (Europe) (C‑601/23, EU:C:2024:1048)), the Court has destroyed the global distinction between unlimited and limited tax liability in non-harmonised income tax law for the EU Member States. It is not entirely clear, however, whether that was a deliberate decision or rather an ‘accident’ which should be remedied as soon as possible on the basis of another request for a preliminary ruling, similar to the judgment of 8 September 2015, Taricco and Others (C‑105/14, EU:C:2015:555, paragraph 58) and the subsequent correction effected by the judgment of 5 December 2017, M.A.S. and M.B. (C‑42/17, EU:C:2017:936, paragraph 62).
5      In Germany, for example, that is also conceivable without a transfer of ownership, as legal transactions which, without establishing a right to transfer ownership, legally or commercially
enable another person to make use, for that person’s own account, of property located in Germany, are also subject to tax on the transfer of immovable property (see Paragraph 1(2) of the German Grunderwerbsteuergesetz (Law on tax on transfers of immovable property)).
6      Judgment of 1 August 2025, Banca Mediolanum (C‑92/24 to C‑94/24, EU:C:2025:599, paragraph 41 – any tax, whatever its nature). See also my Opinion in Banca Mediolanum (C‑92/24 to C‑94/24, EU:C:2025:223, point 37 et seq.).
7      Judgments of 18 January 2001, P. P. Handelsgesellschaft (C‑113/99, EU:C:2001:32, paragraph 24), and of 26 September 1996, Frederiksen (C‑287/94, EU:C:1996:354, paragraph 21).
8      In a similar vein, judgments of 28 June 2007, Albert Reiss Beteiligungsgesellschaft (C‑466/03, EU:C:2007:385, paragraph 48); of 18 January 2001, P. P. Handelsgesellschaft (C‑113/99, EU:C:2001:32, paragraph 27); of 11 December 1997, Locamion (C‑8/96, EU:C:1997:601, paragraph 26); of 26 September 1996, Frederiksen
(C‑287/94, EU:C:1996:354, paragraph 20); and of 11 June 1996, Denkavit Internationaal and Others (C‑2/94, EU:C:1996:229, paragraph 23). Also in a similar vein, judgment of 1 October 2009, HSBC Holdings and Vidacos Nominees (C‑569/07, EU:C:2009:594, paragraph 29).
9      Council Directive of 17 July 1969 concerning indirect taxes on the raising of capital (OJ, English Special Edition: 1969 (II), p. 412).
10      Order of 6 October 2010, INMOGOLF (C‑487/09, EU:C:2010:586, paragraph 17).
11      Order of 6 October 2010, INMOGOLF (C‑487/09, EU:C:2010:586, operative part).
12      Judgment of 11 December 1997, Immobiliare SIF
(C‑42/96, EU:C:1997:602, paragraph 24).
13      Judgment of 10 March 2005, Optiver and Others (C‑22/03, EU:C:2005:143, paragraphs 33 and 34).
14      Judgment of 19 April 2012, Grillo Star Fallimento (C‑443/09, EU:C:2012:213, paragraph 43); in a similar vein, judgment of 13 February 1996, Bautiaa and Société française maritime (C‑197/94 and C‑252/94, EU:C:1996:47, paragraphs 33 and 38), which focuses on the fact that the tax at issue was levied on merger transactions entered into exclusively by legal persons or organisations liable to corporation tax.
15      Judgment of 11 December 1997, Locamion
(C‑8/96, EU:C:1997:601).
16      Judgment of 11 December 1997, Locamion (C‑8/96, EU:C:1997:601, paragraphs 30 and 31).
17      That point is emphasised in particular in the judgment of 11 December 1997, Locamion (C‑8/96, EU:C:1997:601, paragraph 32).
18      Judgments of 15 June 2006, Badischer Winzerkeller (C‑264/04, EU:C:2006:402, paragraph 32), and of 11 December 1997, Immobiliare SIF (C‑42/96, EU:C:1997:602, paragraph 34).
19      The Commission refers to a duty on the transfer of securities, charged at a flat rate, which is permitted under Article 6(1)(a) of Directive 2008/7, and refers to that end to the order of 6 October 2010, INMOGOLF (C‑487/09, EU:C:2010:586). However, that order concerned a special tax on the transfer of securities, which the present case does not.
20      Council Directive (EU) 2016/1164 of 12 July 2016 laying down rules against tax avoidance practices that directly affect the functioning of the internal market (OJ 2016 L 193, p. 1). Regarding the issues of EU competence, see my Opinion in Commission v Belgium (Directive 2016/1164 – Double taxation) (C‑524/23, EU:C:2025:381, point 25 et seq.).