OPINION OF ADVOCATE GENERAL
HOGAN
delivered on 28 November 2019(1)
Case C‑565/18
Société Générale S.A.
v
Agenzia delle Entrate – Direzione Regionale Lombardia Ufficio Contenzioso
(Request for a preliminary ruling from the Commissione Tributaria Regionale per la Lombardia (Regional Tax Court, Lombardy, Italy))
(Reference for a preliminary ruling— Free movement of capital — Financial transaction tax — Shares or other financial instruments issued by companies resident in Italy)
1.        While this request for a preliminary ruling primarily concerns the interpretation of Article 63 TFEU, it raises the fundamental question as to whether the four fundamental freedoms (goods, people, services and capital) associated with the internal market set a limit on the right of a Member State to impose a tax on certain transactions by reference to criteria other than standard criteria such as territoriality. The issue arises in the following way.
2.        The request was made in proceedings between Société Générale SA and Agenzia delle Entrate — Direzione Regionale Lombardia (tax authority — Regional Directorate of Lombardy, Italy) concerning a claim for reimbursement of the amount of a tax on financial transactions paid on the conclusion of derivative financial instruments by Société Générale.
3.        More precisely the main issue raised by this case concerns the test to be carried out to determine whether or not these fundamental freedoms preclude the adoption of a tax due on any transaction involving derivative financial instruments having as their underlying assets one or more of the financial instruments governed by Italian law, irrespective of where the transaction was concluded and the State of residence of the contracting parties.
I.      National law
4.        Article 1 of Legge n. 228 — Disposizioni per la formazione del bilancio annuale e pluriennale dello Stato (Legge di stabilità 2013) (Law No 228 on the provisions for the formation of the annual and multiannual State budget (Stability Law 2013)), of 24 December 2012 (GURI No 302, of 29 December 2012, ordinary supplement No 212, p. 1) (‘Law No 228/2012’), provides, in paragraphs 491, 492, 494 and 495:
‘491.      The transfer of ownership of shares and other participating financial instruments referred to in Article 2346(6) of the [Italian] Civil Code, issued by companies resident in the territory of the State, as well as securities representing such instruments, regardless of the State of residence of the issuing entity, shall be subject to a financial transaction tax at the rate of 0.2% of the transaction value. The transfer of ownership of shares resulting from the conversion of bonds is also subject to the above tax. … The value of the transaction is defined as the net balance of daily transactions relating to the same financial instrument and concluded on the same business day by a single entity, i.e., the consideration obtained. The tax is due irrespective of the place of conclusion of the transaction and the State of residence of the contracting parties. The tax rate is reduced by half for transfers that take place on regulated markets and multilateral trading facilities. Excluded from the tax are the issue and cancellation of the abovementioned shares and financial instruments, as well as the conversion into newly created shares and the temporary transfer of securities operations referred to in Article 2(10) of Commission Regulation (EC) No 1287/2006 of 10 August 2006. The tax also excludes transfers of ownership of shares traded on regulated markets or multilateral trading facilities, which are issued by companies whose average market capitalisation in November of the year preceding the year in which the transfer of ownership takes place is less than EUR 500 million.
492.      Transactions involving derivative financial instruments provided for in Article 1(3) of Legislative Decree No 58 of 24 February 1998, as amended, which mainly have as their underlying instrument one or more of the financial instruments provided for in paragraph 491, or the value of which depends essentially on one or more of the financial instruments provided for in the same paragraph, and transactions in securities provided for in Article 1(1bis)(c) and (d), of the same legislative decree, allowing the purchase or sale mainly of one or more financial instruments referred to in paragraph 491 or involving a cash payment determined mainly in relation to one or more financial instruments referred to in the preceding paragraph, including warrants, hedged warrants and certificates, shall be subject, at the time of conclusion, to a fixed tax, determined according to the type of instrument and the value of the contract, in accordance with Table 3 annexed to this Law. The tax is due irrespective of the place of conclusion of the transaction and the State of residence of the contracting parties. In the event that the transactions referred to in the first sentence also provide, as a method of settlement, for the transfer of shares or other participating financial instruments, the transfer of the right of ownership of such financial instruments, which occurs at the time of settlement, shall be subject to tax in accordance with the terms and to the extent provided for in paragraph 491. …
…
494.      The tax provided for in paragraph 491 shall be payable by the transferee; that provided for in paragraph 492 shall be payable to the extent established by each of the counterparties to the transactions. The tax provided for in paragraphs 491 and 492 does not apply to entities that interpose themselves in the same transactions. In the case of a transfer of ownership of shares and financial instruments provided for in paragraph 491, as well as for transactions in financial instruments provided for in paragraph 492, the tax shall be paid by banks, trust companies and investment firms authorised to provide investment services and activities to the public on a professional basis … and by other entities involved in the execution of the above transactions, including non-resident intermediaries. Where several of the entities indicated in the third sentence are involved in the execution of the transaction, the tax shall be paid by the entity which receives the execution order directly from the purchaser or the final counterparty. In other cases, the tax is paid by the taxpayer. Non-resident intermediaries and other entities involved in the transaction may appoint a tax representative … who is responsible, on the same terms and with the same responsibilities as the non-resident entity, for the obligations related to the transactions referred to in the preceding paragraphs. …
495.      Transactions carried out on the Italian financial market are subject to a tax on high-frequency negotiations relating to the financial instruments provided for in paragraphs 491 and 492 …’
5.        Table 3, referred to in Article 1(492) of Law No 228/2012, annexed thereto, entitled ‘Table: tax on financial transactions by financial instruments (value denominated in euro for each counterparty)’, is worded as follows:
National value of the contract
(in thousands of EUR)
Financial instrument
0-2.5
2.5-5
5-10
10-50
50-100
100-500
500-1 000
More than 1 000
Futures contracts, certificates, hedged warrants and option contracts on returns, measures or indices relating to shares
0.01875
0.0375
0.075
0.375
0.75
3.75
7.5
15
Futures contracts, warrants, certificates, hedged warrants and equity option contracts
0.125
0.25
0.5
2.5
5
25
50
100
Equity swaps and related performance, indices or measures
Equity forward contracts and related performance, indices or measures
Financial contracts with payment of a differential linked to the shares and the corresponding returns, indices or measures
Any other security with cash settlement determined by reference to the shares and the corresponding returns, indices or measures
Combinations of the above contracts or securities
0.25
0.5
1
5
10
50
100
200
6.        Article 2(1) of the decreto del 21 febbraio 2013 del Ministero dell’Economia e delle Finanze (Decree of 21 February 2013 of the Minister of Economy and Finance) (GURI No 50 of 28 February 2013; ‘Decree of 21 February 2013’), adopted pursuant to paragraphs 491 to 499 of Article 1 of Law No 228/2012, provides:
‘The tax referred to in paragraph 491 shall apply to the transfer of ownership of shares and participating financial instruments issued by companies resident in the territory of the State. For this purpose, residence is determined on the basis of the registered office. The tax also applies to the transfer of ownership of the representative securities, regardless of the place of residence of the issuer of the certificate and the place of conclusion of the contract.’
II.      The main proceedings and the questions referred for a preliminary ruling
7.        On 28 March 2014, the Italian branch of Société Générale, a company established in France, submitted a declaration to the Italian tax authorities regarding the financial transaction tax established by Law No 228/2012. This declaration, to the value of EUR 55 207, covers transactions in derivative financial instruments referred to in Article 1(492) of that law carried out during the 2013 tax year by the French parent company.
8.        On 1 August 2014, Société Générale asked the tax authorities for a refund of the sums paid in this respect, arguing that this national provision, in so far as it provides for the taxation of financial transactions relating to derivative contracts where the security underlying such a contract has been issued by an entity resident in Italy, regardless of the State of residence of the financial operators and the intermediary, would be contrary not only to the Italian Constitution, but also to Union law, in particular Articles 18, 56 and 63 TFEU.
9.        On 28 January 2015, in the absence of a reply from the tax authorities, Société Générale brought an action — based on these grounds — before the Commissione Tributaria Provinciale di Milano (Provincial Tax Court, Milan, Italy) against this tacit decision to refuse a refund. By a judgment of 18 May 2016, that court dismissed the action, considering that the financial transaction tax was neither unconstitutional nor contrary to Union law.
10.      Société Générale appealed this judgment to the Commissione Tributaria Regionale per la Lombardia (Regional Tax Court, Lombardy, Italy), requesting reimbursement of the tax paid on the basis of the same argument and, in the alternative, referral of the case to the Corte Costituzionale (Constitutional Court, Italy), or to the Court of Justice for a preliminary ruling.
11.      The referring court notes that Articles 1(491) to (500) of Law No 228/2012 introduced a financial transaction tax to ensure a contribution to public expenditure from any entity carrying out transactions related to financial instruments linked to the territory of the Italian State. Contrary to the arguments put forward by the claimant in relation to the Italian Constitution, the referring court considers that there is an effective and objective territorial link between the tax provided for in Article 1(492) of Law No 228/2012 and the Italian legal order, since any operator trading in derivative contracts benefits from the value of those underlying assets, which depends in turn on the Italian legal system.
12.      That court questions, however, whether Article 1(492) of Law No 228/2012 is in conformity with the principles of Union law. Indeed, as observed by Société Générale, it is suggested that Article 1(492) of Law No 228/2012 might be contrary to Articles 18, 56 and 63 TFEU for two reasons. First, the tax introduced by this provision treats resident and non-resident taxable persons in the same way, which could constitute discrimination. Secondly, that provision would make financial intermediation activities less attractive to non-resident companies, both by the very application of the tax it provides for and by the administrative and reporting burdens resulting from its implementation. The consequence of this tax would thus be to prevent market access for these products by discouraging both supply and demand.
13.      In these circumstances, the Commissione Tributaria Regionale per la Lombardia (Regional Tax Court, Lombardy) decided to stay proceedings and to refer the following question to the Court for a preliminary ruling:
‘Do Articles 18, 56 and 63 TFEU preclude national legislation from charging a tax on financial transactions — irrespective of the State of residence of the financial market participants and the intermediary — which is payable by the counterparties to the transaction and consists of a fixed amount which rises incrementally in ranges and trading values and which varies according to the type of instrument traded and the value of the contract, and which is due by virtue of the fact that the taxable transactions concern the trading of a derivative based on a security issued by a company resident in the State imposing that tax?’
III.      Analysis
14.      In so far as the referring court’s question refers to several Treaty provisions, it is first necessary to determine which of these provisions are in fact relevant.
A.      Determination of the relevant provisions of the Treaty
15.      First, the national court referred to both Articles 56 and 63 TFEU.
16.      According to Article 56 TFEU ‘restrictions on freedom to provide services within the Union shall be prohibited in respect of nationals of Member States who are established in a Member State other than that of the person for whom the services are intended’. For its part, Article 63(1) TFEU states that ‘all restrictions on the movement of capital between Member States and between Member States and third countries shall be prohibited’.
17.      In the present case, the applicant contests the validity of the tax provided for in Article 1(492) of Law No 228/2012 on derivative financial instruments which have as underlying assets a financial instrument governed by Italian law.
18.      In this regard, it should be noted that derivative financial instruments are contracts in which the parties agree on future cash flows depending on the value of an underlying asset.
19.      In practice, derivatives can therefore be used to manage economic or financial risks associated with adverse changes in the price of the underlying asset (hedging function) or for investment purposes, either by speculating on a change in the price of that underlying asset (speculative function) or, in the event of a mismatch between the value of an underlying asset and its derivative, by buying the opposite position (arbitrage function). (2)
20.      In the light of these different uses that can be made of derivatives, national legislation that governs or taxes derivative financial instruments may potentially fall under both Article 56 and Article 63 TFEU.
21.      Indeed, to the extent that derivatives can be used to cover a risk, they can, on the one hand, be considered as falling under the free movement of services. On the other hand, the nomenclature annexed to Council Directive 88/361/EEC of 24 June 1988 for the implementation of Article 67 of the Treaty (OJ 1988 L 178 p. 5) — which, according to the Court’s case-law, may be used as a guide in matters of this kind — defined the concept of ‘capital movements’ as covering ‘access for the economic operator to all the financial techniques available on the market … [such as] forward transactions, transactions carrying an option or warrant, swaps against other assets, etc.’. (3) Since options, warrants and swaps are all contracts in which the parties agree on future cash flows that depend on the value of an underlying asset and, therefore their derivatives, it seems that, judged by reference to the guidance provided by Directive 88/361, derivative financial instruments should be regarded as also covered by the free movement of capital. (4)
22.      It may be recalled, however, that where a national measure concerns both the freedom to provide services and the free movement of capital, that measure should be examined by reference only to one of those two freedoms if it appears, in the circumstances of the case, that one of them is entirely secondary in relation to the other and may be considered together with it. (5)
23.      In the main proceedings, the reasons why Société Générale issued, sold or purchased (6) the derivatives in question, in particular whether or not those transactions were intended to hedge against a risk, are not apparent from the documents provided to the Court by the referring court.
24.      However, derivative financial instruments always represent an investment for those who hold them, and only constitute a hedging service under certain specific circumstances. It follows, therefore, that in this context the principles governing the free movement of services must be considered as being secondary to those governing the free movement of capital when a measure governing or taxing the derivatives of financial instruments is at stake. (7)
25.      In order, however, for any of the fundamental freedoms associated with the internal market to apply, two conditions need to be satisfied: first, the situation at issue in the main proceedings must not be purely internal to the Member State in question; (8) secondly, the domain covered by the national measure whose compatibility with EU law has been challenged must not yet have been fully harmonised. (9)
26.      Regarding the requirement that the situation at issue in the main proceedings must not be confined in all respects within a single Member State, it is clear to me that this condition is fully satisfied. Indeed, the dispute in the main proceedings is characterised by factors which are cross-border: the applicant is a company established in another Member State and the disputed tax is due not only in respect of transactions on the derivatives concerned carried out in Italy, but also in the rest of the world.
27.      Concerning the domain covered by the tax at issue in the main proceedings, in order to determine whether it is fully harmonised at EU level, the nature of the measure at issue in the main proceedings needs to be examined.
28.      In this regard, since the tax provided for in Article 1(492) of Law No 228/2012 is levied independently of the persons’ ability to pay tax and is due as a result of the carrying out of a specific transaction, that tax must be regarded as an indirect tax within the meaning of Union law. Accordingly, two harmonisation directives come to mind.
29.      The first is Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1). (10) It is, however, settled case-law that the harmonisation brought about by that directive does not preclude a Member State from maintaining or introducing indirect taxes if they do not display one of the essential characteristics of VAT. (11)
30.      Among the essential characteristics of VAT, its central design feature, from which it derives its name, and which is therefore essential, in my view, for a tax to fall within the scope of the harmonisation under Directive 2006/112, is that the tax is collected through a staged process. Each business in the supply chain takes part in the process of controlling and collecting the tax, remitting the proportion of tax corresponding to its margin. (12) Since the tax provided for in Article 1(492) of Law No 228/2012 is not collected through a staged process, it follows that this tax is thus not covered by Directive 2006/112.
31.      The second EU legislative measure is Council Directive 2008/7/EC of 12 February 2008 concerning indirect taxes on the raising of capital (OJ 2008 L 46, p. 11), Article 5 of which precludes Member States from subjecting to any form of indirect tax whatsoever ‘the creation, issue, admission to quotation on a stock exchange, making available on the market or dealing in stocks, shares or other securities of the same type, or of the certificates representing such securities, by whomsoever issued’. Since, however, Article 1(492) of Law No 228/2012 does not apply to any of these operations, (13) the tax provided for in that article is not covered by this prohibition.
32.      It would appear, therefore, that the domain covered by the tax at issue in the main proceedings has not been harmonised. Accordingly, that tax can be analysed by reference to Article 63 TFEU.
33.      Since at least one of the fundamental freedoms is applicable, there is also no need to examine that tax in the light of Article 18 TFEU. Indeed, Article 18 TFEU, which lays down a general prohibition of all discrimination on grounds of nationality, is intended to apply only to situations governed by European Union law in respect of which the Treaty does not itself lay down any specific rules of non-discrimination. (14) Since the principle of non-discrimination has been implemented in the field of free movement of capital by Article 63 TFEU, the question raised by the referring court shall be examined in the light of Article 63 TFEU.
B.      On the test to be performed
34.      As a preliminary point, it should be recalled that the application of fundamental freedoms in the field of taxation presents some specific characteristics. Indeed, in areas other than taxation, the Court’s case-law demonstrates that to establish the existence of a restriction, it is sufficient that a measure is likely to prohibit, hinder or make less attractive the exercise of a fundamental freedom. (15) Accordingly, a restriction can take the form of an indistinct measure. (16)
35.      By contrast, however, in the context of taxation, the concept of a ‘restriction’ is applied in a more limited manner. This is by reason of the very nature of taxation itself, since the mere fact that an activity or a transaction is taxed necessarily makes that activity less attractive when examined in the light of the exercise of any of the four freedoms associated with the internal market. Accordingly, in order not to impair unduly the ability of Member States to raise taxes, (17) only discriminatory tax measures constitute restrictions for the purpose of the application of those freedoms. (18) Given this raison d’être of the legal regime specific to tax measures, it is irrelevant, in my view, whether the tax at issue is direct or indirect.
36.      In order, therefore, to identify a restriction to the fundamental freedom of movement, it is necessary to carry out the same test as that which is applied regarding the principle of equal treatment, namely that the national measure at issue must not treat differently two situations which, in view of the content (19) of this measure or of the objective pursued (20) — provided that this objective is not discriminatory itself — or of the general principles governing the concerned field, (21) are comparable, with the result of disadvantaging cross-border transactions. (22) Conversely, measures that treat differently situations that are in truth identical with the result of disadvantaging cross-border transactions also constitute restrictions. (23)
37.      Although not all the Court’s judgments make reference to the term ‘discrimination’, this approach can nonetheless be considered as settled case-law, at least since the judgment of 17 July 2014, Nordea Bank Danmark (C‑48/13, EU:C:2014:2087). In that case, indeed, the Court, sitting in Grand Chamber, reiterated that it was necessary that the comparability of situations be taken into account to qualify a measure as a restriction. (24)
38.      Finally, even when it is discriminatory in nature, a tax measure is considered not to be contrary to the principle of the free movement of capital if it is justified by overriding reasons in the public interest and the principle of proportionality is observed. In this context, the principle of proportionality requires that the measure be appropriate to ensure the attainment of the objective legitimately pursued and not to go beyond what is necessary for this purpose. (25)
39.      In the present case, the parties have raised the question of whether there is an effective and objective territorial link between the tax provided for in Article 1(492) of Law No 228/2012 and the Italian legal order. Although this issue was principally raised in the context of the compatibility of the tax with the Italian constitution, in so far as this question may assume some relevance in the course of the present proceedings, I propose to examine whether, in the context of Union law, international law should be taken into consideration.
40.      In this regard, I consider that adherence to the principles of international law is not, as such, directly relevant for determining either whether a measure falls within the scope of taxation powers and, therefore, which test should be applied — or whether it should be regarded as a restriction on the free movement of capital in the meaning of Article 63 TFEU.
41.      It is true, of course, that by reason of Article 113 TFEU, Member States share competence with the Union in matters of indirect taxation. However, in so far as taxes on derivative financial instruments, such as that at issue in the main proceedings, have not been harmonised (26), they remain within the competence of the Member States. It follows, therefore, that the Court has no jurisdiction to adjudicate on whether Member States comply with public international law when they adopt such tax measures. Of course, as is perfectly clear from the Court’s case-law, the European Union must itself comply with the requirements of international law when it decides to exercise its powers. (27) But that is not to say that European Union law also requires that Member States exercise their own retained sovereign powers in conformity with the principles of international law. Nor does it necessarily follow that the existence of a restriction for the purposes of Article 63 TFEU can be inferred simply from the fact that a Member State has exceeded its jurisdiction under international law.
42.      One might further observe that the aim of the fundamental freedoms enshrined in the Treaties is one which is designed to ensure that the functioning of the single market is not affected by the manner in which the Member States exercise their competences. Consequently, for these freedoms to preclude the adoption of national measures, such measures must be likely to affect the functioning of the single market. The fact that a Member State has exercised its legislative powers in a manner which is contrary to the requirements of international law does not imply that the adopted measure is likely to affect the operation of the single market. It follows, therefore, that the fact that a Member State assumed jurisdiction in a manner which was contrary to the precepts of international law does not appear in and of itself to be directly relevant in any assessment of whether the national measure may be said to violate the requirements of Article 63 TFEU. (28)
43.      In my opinion, if international law plays a role at all, it is purely as a justification in respect of a particular national tax measure. Since the EU must itself comply with international law when exercising its competences, Member States may rely on their international obligations — whilst respecting Article 344 TFEU — to justify the adoption of a restriction for the purposes of Article 63 TFEU. (29) However, when they act outside of the scope of application of EU law, the question of whether Member States are bound to respect international law, and consequently whether or not they do so, does not fall within the jurisdiction of the Court.
44.      If it were otherwise, this could mean that States with a dualist system or those associated with dualism, would have to renounce it and consider that international law is directly applicable in their domestic legal order, even in areas which remain exclusively under their sovereignty, because of the application of the fundamental freedoms.
45.      It may be noted in passing that, in any event, the Court has never previously conducted any such assessment. Thus, for example, in its judgment of 26 May 2016, NN (L) International (C‑48/15, EU:C:2016:356), concerning the taxation of units of collective investment undertakings (UCIs) placed each year in Belgium, irrespective of the place of residence of the bodies issuing those units or of their place of negotiation, the Court examined the compatibility of this tax with fundamental freedoms without pausing to examine whether that Member State concerned enjoyed jurisdiction to do so under international law.
46.      Therefore, even if the tax at issue may possibly raise issues as to whether Italy has jurisdiction under international law to levy the tax in question — since the tax applies irrespective of where the matter was transacted — I consider that there is no need to address these issues in order to answer the question asked by the Commissione Tributaria Regionale per la Lombardia (Regional Tax Court, Lombardy).
C.      On the existence of a restriction on the free movement of capital within the meaning of Article 63 TFEU
47.      According to Société Générale, Article 1(492) of Law No 228/2012 gives rise to a double restriction. Indeed, the tax provided for by that provision might discourage foreign investors from investing in derivative financial instruments based on assets governed by Italian law, to the extent that, firstly, these instruments are taxed. Secondly, the implementation of this tax creates some new reporting obligations, in addition to those already provided for in the State of residence of the parties.
48.      In this regard, it should be noted that by way of advancing its contention that Article 1(492) of Law No 228/2012 creates such a double restriction, Société Générale essentially relies in its observations on judgments of the Court in non-taxation cases. As, however, I have already pointed out above, the Court’s case-law has adopted a narrower definition of the concept of ‘restriction’ in the field of taxation than in other fields. In order to constitute a restriction in the field of taxation, it is not in itself sufficient that the measure at issue dissuades non-residents from investing in national financial instruments: the measure at issue must instead establish a direct or an indirect discrimination to the specific detriment of cross-border transactions.
49.      Since, in the main proceedings, the tax at issue is due regardless of the residence of the parties to the transaction or of any possible intermediaries, that tax does not create any discrimination of the kind prohibited by Article 63 TFEU.
50.      First, from the perspective of investors, that tax does not constitute discrimination since that tax applies independently of their nationality or place of residence. (30)
51.      Secondly, it is certainly true that, with regards to derivatives, such a tax establishes a difference of treatment between, on the one hand, those who have for underlying assets a financial instrument governed by Italian law and issued by Italian companies and, on the other, those issued by companies registered in another country .
52.      It may, however, be recalled that Article 1(492) of Law No 228/2012 aims at taxing derivatives which have financial instruments governed by Italian law for underlying assets, which in itself does not constitute a form of direct discrimination. In view of this objective, derivatives whose underlying assets are governed by Italian law must be considered as not being comparable to the derivatives whose underlying assets are not governed by that law. This difference of treatment is thus outside the concept of ‘discrimination’ under Union law. Therefore, according to the Court’s case-law, that measure does not constitute a restriction for the purposes of Article 63 TFEU.
53.      As for the reporting obligations that this tax creates in addition to those that already exist in the Member State of residence, these obligations seem to be limited to what is necessary to ensure the timely and effective enforcement of that tax. In particular, there is no indication that non-resident entities are subject to obligations different from those imposed on Italian nationals or even Italian residents. Such an accumulation of obligations must therefore be considered as being simply the consequence of the exercise in parallel by two Member States of their fiscal supervision. (31)
54.      Thus, in so far as these declarative obligations, flowing from the tax laid down in Article 1(492) of Law No 228/2012, are only an incidental feature of the supervisory features of that tax, they cannot themselves be contrary to Union law if (as I have already concluded) the underlying tax is not. (32)
55.      In my opinion, it follows, therefore, that the tax provided for in Article 1(492) of Law No 228/2012 is not contrary to the requirements of the free movement of capital provisions of Article 63 TFEU.
IV.      Conclusion
56.      In the light of the foregoing considerations, I propose that the Court answer the questions asked by the Commissione Tributaria Regionale per la Lombardia (Regional Tax Court, Lombardy, Italy) as follows:
Article 63 TFEU should be interpreted as not precluding national legislation from charging a tax on financial transactions — irrespective of the State of residence of the financial market participants and the intermediary — which is payable by the counterparties to the transaction and consists of a fixed amount which rises incrementally in ranges and trading values and which varies according to the type of instrument traded and the value of the contract, and which is due by virtue of the fact that the taxable transactions concern the trading of a derivative based on a security issued by a company resident in the State imposing that tax.
1      Original language: English.
2      It seems that the scope of application of the tax at issue in the main proceedings is not limited to derivatives that might give rise to a transfer of property of the underlying assets. Indeed, Table 3, referred to in Article 1(492) of Law No 228/2012, mentions, inter alia, derivatives based on indices whose originality lies precisely in the absence of effective delivery of the underlying assets.
3      Although Directive 88/361 has been repealed and cannot, as an instrument of secondary legislation, determine the appropriate interpretation of primary law, the Court’s case-law considers that this annex has an indicative value. See, for example, judgment of 26 April 2012, van Putten (Joined cases C‑578/10 to C‑580/10, EU:C:2012:246, paragraph 28).
4      However, the fact that derivative financial instruments fall within the scope of the free movement of capital does not exclude the possibility that they may also fall within the scope of the free movement of services. See, for example, judgment of 9 July 1997, Parodi (C‑222/95, EU:C:1997:345, paragraph 17).
5      See judgment of 26 May 2016, NN (L) International (C‑48/15, EU:C:2016:356), paragraph 39 and the case-law cited). However, the Court sometimes cumulatively applies several freedoms. See, for example, judgment of 11 June 2009, X and Passenheim-van Schoot (Joined cases C‑155/08 and C‑157/08, EU:C:2009:368, paragraph 40).
6      According to Article 1(494) of Law No 228/2012 the tax shall be payable to the extent established by each of the counterparties to the transactions.
7      As I will go on to explain, since the abovementioned tax does not create any discrimination, the determination as to whether it falls within the scope of a specific fundamental freedom does not have any particular consequences. Indeed, the identification of the applicable fundamental freedom has consequences mainly in respect of any potential justification that can be advanced in respect of the national legislation in question.
8      Judgment of 15 November 2016, Ullens de Schooten (C‑268/15, EU:C:2016:874, paragraph 47).
9      See, for example, judgment of 16 October 2014, Commission v Germany (C‑100/13, not published, EU:C:2014:2293, paragraph 62).
10      See recitals 2 to 7 and Article 401.
11      See, for example, judgments of 20 March 2014, Caixa d’Estalvis i Pensions de Barcelona (C‑139/12, EU:C:2014:174, paragraph 28), and of 3 October 2006, Banca popolare di Cremona (C‑475/03, EU:C:2006:629, paragraphs 27 and 28).
12      See OECD, International VAT/GST Guidelines, OECD Publishing, Paris, 2017, https://doi.org/10.1787/9789264271401-en. See also judgment of 3 October 2006, Banca popolare di Cremona (C‑475/03, EU:C:2006:629, paragraphs 28 and 30).
13      Shares or any other securities of the same type, or certificates are subject to the tax provided for not in Article 1(492), but in Article 1(491) of Law No 228/2012, which expressly excludes from its scope the issuance of that kind of financial instrument.
14      Judgment of 31 March 2011, Schröder (C‑450/09, EU:C:2011:198, paragraph 28).
15      See, for example, judgments of 31 March 1993, Kraus (C‑19/92, EU:C:1993:125, paragraph 32) of 25 January 2007, Festersen (C‑370/05, EU:C:2007:59, paragraph 24); of 22 January 2015, Stanley International Betting and Stanleybet Malta, (C‑463/13, EU:C:2015:25, paragraph 45); and of 22 June 2017, Bechtel (C‑20/16, EU:C:2017:488, paragraph 37).
16      See, to that effect, judgment of 21 December 2016, AGET Iraklis (C‑201/15, EU:C:2016:972, paragraph 49).
17      See, to that effect, judgments of 6 December 2007, Columbus Container Services (C‑298/05, EU:C:2007:754, paragraph 53), and of 26 May 2016, NN (L) International (C‑48/15, EU:C:2016:356, paragraph 47). It should be pointed out, with regard to the free movement of capital, that Article 65 TFEU expressly states that ‘the provisions of Article 63 shall be without prejudice to the right of Member States … to apply the relevant provisions of their tax law which distinguish between taxpayers who are not in the same situation with regard to their place of residence or with regard to the place where their capital is invested’. However, this derogation is, in turn, limited by paragraph 3 of that same article, when it provides that ‘the measures and procedures referred to in paragraphs 1 and 2 shall not constitute a means of arbitrary discrimination or a disguised restriction on the free movement of capital and payments as defined in Article 63’.
18      See, for example, judgment of 14 February 1995, Schumacker (C‑279/93, EU:C:1995:31, paragraph 24).
19      See, for example, judgment of 17 December 2015, Timac Agro Deutschland (C‑388/14, EU:C:2015:829, paragraph 28).
20      See, for example, judgment of 1 December 2011, Commission v Hungary (C‑253/09, EU:C:2011:795, paragraph 61).
21      See, to that effect, judgment of 9 February 2017, X (C‑283/15, EU:C:2017:102, paragraph 37).
22      See, to that effect, judgment of 14 April 2016, Sparkasse Allgäu (C‑522/14, EU:C:2016:253, paragraph 29).
23      It should be pointed out that in tax matters the vast majority of obstacles found in the case-law are indirect, because they are related to residence rather than to nationality.
24      Paragraph 23.
25      Judgment of 21 May 2019, Commission v Hungary(Usufruct over agricultural land) (C‑235/17, EU:C:2019:432, paragraph 59). In the case of direct discrimination, a measure could only be justified on one of the grounds provided for in the Treaty. See, for example, judgment of 22 October 2014, Blanco and Fabretti (C‑344/13 and C‑367/13, EU:C:2014:2311, paragraph 38).
26      See point 32 of this Opinion.
27      See, to that effect, judgment of 20 November 2018, Commission v Council (Antarctic MPAs) (Joined cases C‑626/15 and C‑659/16, EU:C:2018:925, paragraph 127).
28      Regarding the possibility of inferring a restriction to the fundamental freedom from a lack of jurisdiction of the Member State, in the meaning of international law, I would also like to stress that, as mentioned above, in fiscal matters, for a measure to constitute a restriction, it must treat comparable situations in a different manner. In the view of this test, the scope of a member state’s jurisdiction seems to be irrelevant. Although it is true that, to assess whether two situations are comparable, account must be taken of the general principles governing the field concerned, this is purely in order to examine whether the treatment of these two situations is consistent with the whole of the national legislation.
29      See order of 5 September 2019, Caisse pour l’avenir des enfants (C‑801/18, EU:C:2019:684, paragraph 41 and the case-law cited).
30      Similarly, contrary to what Société Générale claims, no discrimination can be inferred from the fact that this tax treats residents and non-residents identically, since, in the light of the objective pursued by that tax, these different categories of person must be viewed as being in the same situation.
31      See, to that effect, judgment of 14 April 2016, Sparkasse Allgäu (C‑522/14, EU:C:2016:253, paragraph 25).
32      The referring court only referred to the obligations to identify the transaction concerned, to keep a register and to submit a declaration, which all appear to be inherent to the tax itself.