Opinion of Mr Advocate General Darmon delivered on 7 July 1987. - Amro Aandelen Fonds v Inspecteur der Registratie en Successie. - Reference for a preliminary ruling: Gerechtshof Amsterdam - Netherlands. - Indirect taxes on the raising of capital - Concept of capital company. - Case 112/86.



European Court reports 1987 Page 04453



Opinion of the Advocate-General

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Mr President,

Members of the Court,

1 . The present request for a preliminary ruling seeks an interpretation of Article 3*(2 ) in relation to the scope ratione personae of Council Directive 69/335/EEC of 17 July 1969 concerning indirect taxes on the raising of capital ( 1 ) ( hereinafter referred to as "the Directive ").

2 . The aim of the Directive is to abolish stamp duty on securities and all other indirect taxes other than capital duty on the raising of capital in order to eliminate "discrimination, double taxation and disparities which interfere with the free movement of capital" ( 2 ) as a result of the application of the provisions of national law . According to Article 1 of the Directive capital duty is in principle chargeable "on contributions of capital to capital companies ".

3 . In the main proceedings the Gerechtshof considered that, under the terms of the Netherlands Law ( 3 ) adopted to implement the Directive, the transactions carried out by Amro Aandelen Fonds ( hereinafter referred to as "Amro ") had to be regarded as the raising of share capital and that Amro was a "fund", which did not have legal personality . However, Amro raised the question whether those provisions were compatible with Article 3 of the Directive . The Gerechtshof found that such a fund did not fall within the scope of Article 3*(1 ) of the directive . Article 3*(1 ) defines capital companies by reference to types of companies existing in certain Member States and by specifying

the characteristics which "companies, firms, associations or legal persons" must have to come within the definition . The Gerechtshof adds that Amro may be regarded as a maatschap or company constituted under Netherlands civil law but such a finding is not sufficient to say whether it may be deemed to be a "company" within the meaning of Article 3*(2 ) of the Directive . Article 3*(2 ) is worded as follows :

"For the purposes of the application of this Directive, any other company, firm, association or legal person operating for profit shall be deemed to be a capital company . However, a Member State shall have the right not to consider it as such for the purpose of charging capital duty ."

4 . The Gerechtshof cites the Directive' s objective of harmonization and states that its question reflects the need to lay down an independent definition of "company" for the purpose of the application of the Directive . I do not however think that that course can be followed .

5 . The main objective of the Directive is to harmonize the structure and rates ( 4 ) of capital duty "in accordance with the provisions of Articles 2 to 9 ". ( 5 ) As the Court held in the Felicitas judgment, ( 6 the concept of "nominal amount" within the meaning of Article 5*(2 ) of the Directive "is contained in a provision of Community law which does not refer to the law of the Member States in order to determine its meaning and scope ". ( 7 ) The Court therefore gave a Community-law interpretation of the concept . On the other hand the provisions of Article 3 refer to national law . In the same case the Court noted

"the diversity of the legal structures of the companies, firms, associations or legal persons which may be deemed to be capital companies by virtue of Article 3*(2 ) of the Directive",

and held that it could not be inferred from those various classifications that the concept "nominal amount" could be applied automatically to each type of grouping referred to in Article 3*(2 ) but that it was necessary

"to consider whether the legal structure of each type of company, firm, association or legal person, as disclosed by the relevant national rules and the provisions of the documents of constitution, make it possible to conclude that there is a nominal amount ". ( 8 )

There could be no better indication that the requirement of harmonization did not extend to the legal form of the bodies concerned .

6 . If one considers the fundamental objective of the Directive, it is to harmonize a tax and, more particularly, to define the chargeable event ( Article 4 ), the taxable basis ( Articles 5 and 6 ), the applicable rates ( Article 7 ) and exemptions ( Articles 8 and 9 ). As regards the capital companies liable to the duty, it was thus not a question of harmonizing their legal structure but solely of covering as widely as possible all bodies likely to engage in the taxable transactions . That seems to me confirmed both by the structure of Article 3 as a whole and the objective of Article 3*(2 ).

7 . A certain progression may be noted in the drafting of Article 3 . Clearly, first of all, Article 3*(1)*(a ) includes in the concept of capital companies which are liable to the duty the most traditional forms of companies limited by shares in the Member States . Article 3*(1)*(b ) and ( c ) show even more clearly the Community legislature' s wish to cover other forms of joint capital ( companies, firms and associations or legal persons ) either when the shares can be dealt in on a stock exchange or when the shares to which the risk attaches are freely transferable and to impose capital duty on them independently of any specific company status . Those criteria are among the most common for defining capital companies . Article 3*(1 ) thus covers all amalgamations of capital which, having regard to certain forms or characteristics, are in the nature of capital companies as usually defined . But it is already clear that the concept is a broad one which is not tied to the form of the company alone .

8 . Article 3*(2 ) extends that logical approach . All raising of capital carried out by "any other company, firm, association or legal person operating for profit" is thereby treated in the same way in law as a capital company . In comparison with Article 3*(1)*(b ) and above all Article 3*(1)*(c ) the aforementioned usual criteria have been discarded . In answer to a question from the Court the Commission stated that Article 3*(2 ) constitutes a real "safeguard clause" for Member States enabling them, in the context of the charging of capital duty, to avoid tax distortions which might otherwise arise from the legal form adopted for the raising of capital . I think that without necessarily adopting the proposed wording it is possible to agree with that analysis, especially in view of the second sentence of Article 3*(2 ) which authorizes Member States not to apply that deeming provision . It follows from the discretion which the Member States thus enjoy that the decision whether or not they levy capital duty depends upon considerations of national law .

9 . The objective of Article 3 is then to determine what entities are compulsorily subject to such duty but not to harmonize their legal forms . The entities liable under Article 3*(2 ) are those which it is not possible one way or another to define as a capital company but may have the same economic function as such a company in so far as capital is raised for the purpose of profit . In such cases Member States have a discretion whether to deem the entity to be a capital company which is something that the majority of them have refrained from doing in respect of investment funds . However, as the Netherlands Government has rightly said, every Member State may determine whether or not to grant exemption on the basis of the particularities of its own national law . No explanation has been given of the reasons which led the Netherlands legislature to subject these funds to capital duty but the Netherlands Government was under no obligation to give an explanation since assimilation is the rule .

10 . It is thus for the national court to determine in each case whether a particular entity comes within the scope of Article 3*(2 ). All that remains is to define the criteria which it should adopt for that purpose . In my opinion, in view of the extremely wide wording of Article 3*(2 ) its objective is in principle not to allow any collective action likely to have the same economic role as that of a capital company stricto sensu to escape liability to duty . All amalgamations of assets or funds the effect of which is to create a separate fund put together for the purpose of profit are to be treated as capital companies . I am thus proposing a functional criterion for the interpretation of Article 3*(2 ). The reference to any other "company, firm, association or legal person operating for profit" necessarily suggests the creation of an independent common fund for the purpose of obtaining an economic benefit . Article 3*(2 ) thus appears to cover any body of such kind whatever its legal form .

11 . That does not mean, however, that the raising of capital by informal methods is covered . It must be possible to infer a common intent to act from the terms on which the capital is raised . The various legal forms referred to in Article 3*(2 ) do not correspond to any precise classification . The terms employed are generic and are intended to cover the largest number of forms of raising capital for the purpose of profit . Thus in my opinion it may include a commercial company or one of civil law . Although a company usually has legal personality that is not necessarily the case as is illustrated by the example of the maatschap under Netherlands law . ( 9 ) The same is true of associations . That is why I do not think it is possible to confine the application of Article 3*(2 ) to strictly legal classifications . It was difficult for the Community legislature to avoid referring to specific legal entities in the various Member States . However, as both the Netherlands Government and the Commission suggested, a wide interpretation must be given to the terms employed which should be given their usual rather than technical meaning . Article 3*(2 ) makes it possible to avoid the directive' s object of fiscal harmonization being compromised by reason of the choices offered to those concerned by the various legal forms of capital raising provided for by the national laws .

12 . I therefore propose that the following answer be given to the Gerechtshof, Amsterdam :

"The national court should apply the provisions of the first sentence of Article 3*(2 ) of Council Directive 69/335 of 17 July 1969 if it is found that a capital-raising enterprise, no matter in what legal form, which under national law is subject to capital duty, is operating for profit within the meaning of that provision by setting up an independent joint fund ."

(*) Translated from the French .

( 1 ) Official Journal, English Special Edition 1969 ( II ), p.*412 .

( 2 ) Second recital in the preamble to the Directive .

( 3 ) "Wet op belastingen van rechtsverkeer" of 24 December 1970, Staatsblad 611 .

( 4 ) Seventh recital in the preamble to the Directive .

( 5 ) Article 1 of the Directive .

( 6 ) Judgment of 15 July 1982 in Case 270/81 Felicitas v Finanzamt fuer Verkehrssteuern (( 1982 )) ECR 2771 .

( 7 ) Case 270/81, paragraph 14 .

( 8 ) Case 270/81, paragraph 18 .

( 9 ) Asser-Van der Grinten : Handleiding tot de beoefening van het Nederlands burgerlijk recht, 6th Ed . 1986, Vol . II.2, "De Rechtspersoon", pp.*162 and 163 .