OPINION OF ADVOCATE GENERAL

TIZZANO

delivered on 18 January 2005 ( )

Case C-165/03

Mathias Längst

v

SABU Schuh & Marketing GmbH and Others





(Reference for a preliminary ruling from the Landgericht Stuttgart (Germany))

(Directive 69/335/EEC – Indirect taxes on the raising of capital – Fees charged by a public notary employed as a civil servant)

I – Introduction

1. This case concerns a reference for a preliminary ruling submitted to the Court of Justice, pursuant to Article 234 EC, by the Landgericht Stuttgart (Regional Court, Stuttgart) (Germany) seeking an interpretation of Council Directive 69/335/EEC of 17 July 1969 concerning indirect taxes on the raising of capital, ( ) as amended by Council Directive 85/303/EEC of 10 June 1985 ( ) (‘the directive’).

2. The national court is basically asking the Court of Justice to determine whether the principles established in the order issued in the Gründerzentrum case, ( ) concerning the activity of notaries within the district of the Oberlandesgericht Karlsruhe (Higher Regional Court, Karlsruhe) (‘the OLG Karlsruhe’), are also applicable, in this instance, to notaries who are civil servants in the district of the Oberlandesgericht Stuttgart (Higher Regional Court, Stuttgart) (‘the OLG Stuttgart’).

II – Legislative framework

A – Community law

3. The aim of the directive is to promote the free movement of capital, which is considered to be one of the essential conditions for achieving an economic union whose characteristics are similar to those of a domestic market (first recital). The pursuit of that objective requires that indirect taxes on the raising of capital should be harmonised (second recital).

4. Article 4 of the directive provides that:

‘1. The following transactions shall be subject to capital duty:

(a) the formation of a capital company;

(b) the conversion into a capital company of a company, firm, association or legal person which is not a capital company;

(c) an increase in the capital of a capital company by contribution of assets of any kind;

(d) an increase in the assets of a capital company by contribution of assets of any kind, in consideration, not of shares in the capital or assets of the company, but of rights of the same kind as those of members, such as voting rights, a share in the profits or a share in the surplus upon liquidation;

...

2. The following transactions may … be subject to capital duty:

(a) an increase in the capital of a capital company by capitalisation of profits or of permanent or temporary reserves;

(b) an increase in the assets of a capital company through the provision of services by a member which do not entail an increase in the company’s capital, but which do result in variation in the rights in the company or which may increase the value of the company’s shares;

…

3. Formation, within the meaning of paragraph 1(a), shall not include any alteration of the constituent instrument or regulations of a capital company ...’

5. In accordance with the final recital in its preamble, the directive also provides for the abolition of other indirect taxes having the same characteristics as capital duty. The taxes in question, the levying of which is prohibited, are set out in Article 10 of the directive, which provides as follows:

‘Apart from capital duty, Member States shall not charge, with regard to companies, firms, associations or legal persons operating for profit, any taxes whatsoever:

(a) in respect of the transactions referred to in Article 4;

(b) in respect of contributions, loans or the provision of services, occurring as part of the transactions referred to in Article 4;

(c) in respect of registration or any other formality required before the commencement of business to which a company, firm, association or legal person operating for profit may be subject by reason of its legal form.’

6. Finally, under Article 12(1)(e) of the directive:

‘1. Notwithstanding Articles 10 and 11, Member States may charge:

...

(e) duties paid by way of fees or dues;

....’

B – National law

7. Pursuant to Paragraph 2 et seq. and Paragraph 53(2) of the Gesetz betreffend die Gesellschaften mit beschränkter Haftung (German Law on limited liability companies), amendments to the company statutes of a GmbH (Gesellschaft mit beschränkter Haftung – limited liability company) must be in the form of a notarially attested act. ( )

8. Paragraph 116 of the Bundesnotarordnung (Federal Code on notaries; ‘the BNotO’), ( ) read in conjunction with Paragraph 3(2) of the Landesgesetz über die freiwillige Gerichtsbarkeit (Regional Law on non-contentious jurisdiction), ( ) provides that in the district of the OLG Stuttgart – but not the remainder of that Land, that is to say the area corresponding to the district of the OLG Karlsruhe – the profession of notary can be practised both by notaries who are civil servants and by self-employed notaries.

9. The amount of the fees which notaries may charge is laid down by the Gesetz über die Kosten in Angelegenheiten der freiwilligen Gerichtsbarkeit ( ) (Kostenordnung) (Law on costs in matters of non-contentious jurisdiction), in the version established by the Drittes Gesetz zur Änderung der Bundesnotarordnung und anderer Gesetze,( ) (Third Law amending the Federal Code on notaries and other laws; ‘the KostO’). Those fees apply uniformly throughout Germany for both self-employed notaries and those who are civil servants.

10. According to the second sentence of Paragraph 12(1) and Paragraph 14(1) of the Landesjustizkostengesetz (Regional Law on legal costs: ‘the LJKG’), State-employed notaries in the district of the OLG Stuttgart, unlike those in the district of the OLG Karlsruhe, are themselves the persons to whom the fees for notarisation are due from the parties liable for payment. They are then required, on the basis of regional legislation, to remit to the State Treasury a fixed portion of those fees. The State Treasury can make direct collection, in accordance with Paragraph 15(2) of the LJKG, only where, despite the sending of a letter of formal notice, that fixed portion is not transferred to it.

11. As regards, then, the procedure for appealing against the assessment of costs submitted by a notary for notarisation of a specific transaction, reference should be had to Paragraph 156(1) of the KostO, which provides as follows:

‘Objections to the calculation of the costs, including those concerning the obligation to pay and implementation of the enforcement clause, must be communicated in the form of a complaint to the Landgericht of the district in which the notary has his office. Before issuing judgment, the Landgericht must hear the parties and the notary’s superior. If the person liable for the fees challenges the notary’s calculation of the costs, the latter may ask the Landgericht to act as arbiter.

...’

12. Finally, Paragraph 156(6) of the KostO stipulates that:

‘The authority to which the notary is subject may, in any event, invite the latter to seek a decision of the Landgericht and, subsequently, appeal its decision. The resulting decision of a judicial nature may also have the effect of increasing the amount of the assessment of costs.’

III – Facts and questions referred

13. In his capacity as a public notary, Mr Längst (a State-employed notary in the district of the OLG Stuttgart) notarised a number of resolutions concerning the company SABU Schuh & Marketing GmbH (‘SABU’), and relating to the consolidation of company shares into a single share, the conversion of the subscribed capital and the company shares into euro, a capital increase from company funds and a change of company name.

14. By a statement of the costs, Mr Längst therefore invoiced SABU for fees and expenses in the amount of EUR 2 892.46 for the notarisation of documents. That figure included a fee of EUR 1 584 net for the notarisation of the resolutions – calculated on the basis of a total transaction value of EUR 484 007 – in respect of the capital increase and the amendment of the company statutes. Of that sum, the amount due to the State is EUR 1 183.83 and the amount due to the notary EUR 400.17.

15. In the light of the order handed down by the Court of Justice in Gründerzentrum, the president of the Landgericht Stuttgart, the notary’s superior, took the view that the calculation of the costs of notarisation was to some extent in breach of Directive 69/335 because, in his opinion, the fees charged in respect of the capital increase and the amendment to the company statutes were fees prohibited under that directive. He therefore invited Mr Längst to rectify the amount in the invoice relating to costs, charge SABU only the sum of EUR 1 465.66 gross and refer the matter to the Landgericht Stuttgart, pursuant to Paragraph 156(6) of the KostO, in order to obtain a ruling on the legality of the statement of costs in question.

16. Although he considers his assessment of the costs to be fully justified, Mr Längst complied with the instruction to submit the file to the competent appellate chamber of the Landgericht Stuttgart.

17. Given those differing views and itself having doubts regarding the interpretation of the abovementioned order of the Court of Justice, the Landgericht Stuttgart decided, by an order of 31 March 2003, to stay the proceedings and submit the following questions to the Court of Justice for a preliminary ruling:

‘(1) In a legal system such as of the Württemberg region of Baden-Württemberg (in the jurisdiction of the Oberlandesgericht Stuttgart), where there are both notaries who are self-employed and notaries who are employed as civil servants and the notary himself is always the person to whom the charges are due, but where, if the services concerned are carried out by a notary employed as a civil servant, he must remit a fixed portion of the charges to the State, which is his employer and which uses those proceeds to fund its activities, are the charges of the notary employed as a civil servant for the notarisation of a legal transaction covered by Directive 69/335, as amended, to be regarded as tax for the purposes of that directive, in contrast to the situation that gave rise to the order in Case C-264/00 Gründerzentrum …?

(2) If so: if the State waives its claim to the portion of the charges due to it in respect of that legal transaction, thereby ceasing to enforce the legal provision requiring a portion of the charges to be remitted to the State, do the charges cease to constitute a tax for the purposes of Directive 69/335?’

IV – Proceedings before the Court of Justice

18. In the proceedings before the Court, the German Government, the Spanish Government and the Commission have submitted written observations.

19. In the course of its examination of the case, the Court asked the Landgericht Stuttgart, pursuant to Article 104(5) of the Rules of Procedure, for clarification concerning the progress and nature of the proceedings pending before that court.

20. At the hearing of 25 November 2004, Mr Längst, the president of the Landgericht Stuttgart and the Bezirksrevisor (district reviser) at the Landgericht Stuttgart, the Spanish Government and the Commission intervened.

V – Legal analysis

A – Admissibility

21. During the proceedings, doubts emerged as to whether there was actually a dispute pending before the Landgericht Stuttgart, as well as to whether or not the decision requested from the Landgericht was of a judicial nature, and, consequently, whether the Court of Justice had jurisdiction to answer the questions referred to it. I shall, therefore, briefly consider that issue, before entering into the merits of the questions referred.

22. The doubts principally arise because the proceedings in question were brought by Mr Längst, on the instructions of his superior, in order to establish whether the statement of costs Mr Längst himself drew up was legitimate. It could therefore be considered that the referring court has not been seised of a genuine dispute – such as, for instance, a dispute between the person to whom notarial fees are due and the person liable for those fees – but simply an ‘internal’ request of a public administration which does not result in proceedings which are defended.

23. I would first point out, in that regard, that it is settled case-law that ‘it is apparent from Article [234 EC] that a national court may refer a question to the Court only if there is a case pending before it and if it is called upon to give judgment in proceedings intended to lead to a decision of a judicial nature’. ( ) The decisive factor, as the Court also made clear, is that questions for a preliminary ruling should be submitted by courts which are called upon to ‘settle any dispute’, ( ) regardless, among other things, of ‘whether the [main] proceedings … were or were not defended’. ( )

24. However, the fact that there is indeed a dispute in this case can, in my view, easily be determined from the very nature of the main proceedings. It is actually clear from the case-file that proceedings under Paragraph 156 of the KostO may be brought only in cases where there is a dispute over the legality and/or amount of the fees due in respect of a notarial act. That provision in fact governs the only method of challenging a statement of costs drawn up by a notary. It follows that the main proceedings relate to the settlement of a dispute.

25. Nor do I consider that outcome altered by the fact that, in this case, it was the notary’s superior and not the person liable for the fees in question who raised objections to the fees charged by Mr Längst. Mr Längst and his superior are actually advancing different arguments and proposing different solutions in relation to the application of Community law and, in particular, the application to this case of the order in Gründerzentrum. As we have seen, the president of the Landgericht Stuttgart considers that a portion of the fees demanded constitutes a tax which is prohibited under the directive, whereas the notary takes a different view. In assessing the legality of the fees at issue, the national court is therefore required to choose between two diametrically opposed arguments.

26. Secondly, the decision which the referring court will have to take clearly exhibits, in my view, the characteristics of a ‘decision of a judicial nature’. In particular, and as stated in the clarification supplied to the Court, that decision will be enforceable in relations between the person to whom the fees at issue are due and the person liable for them and will be apt to acquire the force of res judicata. Furthermore, that decision could be appealed before the OLG Stuttgart, but only on a point of law and subject to the authorisation of the appeal court.

27. In the light of the above considerations, I consider that the Court has jurisdiction to decide on the questions referred to it in this case, and I shall now proceed to analyse them.

B – Merits

The first question

28. As we have seen, by its first question, the national court is asking whether, in the light of the order in Gründerzentrum, which concerns the activity of notaries within the district of the OLG Karlsruhe, the fees charged by a public notary employed as a civil servant within the district covered by the OLG Stuttgart for certifying a transaction covered by the directive must be deemed to be taxes.

29. To answer that question, it is first necessary to point out that in the order cited by the national court, the Court, applying settled case-law, ( ) held that, as far as is material to this case, charges constitute taxes where they are collected for drawing up notarially attested acts recording a transaction covered by the directive under a system where (i) notaries are employed by the State and (ii) the notarial fees are in part paid to the State for the financing of its official business. ( )

30. The Court further found that the charges payable for drawing up a notarially attested act recording the formation of a capital company constitute taxes prohibited by Article 10 of the directive because: (i) the transaction in question had compulsorily to be recorded by a notarially attested act; (ii) the fees charged were not in the nature of remuneration, that is to say were ‘wholly unrelated to the cost of the service in question’. ( )

31. However, in the view of the national court and the German Government, that solution is not applicable to this case. They consider that the legal position of public notaries employed by the State and working in the district of the OLG Stuttgart differs from that of their colleagues in the district of the OLG Karlsruhe, for two reasons.

32. The first reason is that, in the district of the OLG Stuttgart, in contrast to the position in the district of the OLG Karlsruhe, it is possible to use the services not only of State-employed notaries but also of self-employed notaries. The fact that that choice exists precludes the tax being compulsory in nature. In so far as individuals have the option of using the services of self-employed notaries, the charges payable for drawing up notarial acts are not in fact necessarily collected by the State.

33. Secondly, while in the district of the OLG Karlsruhe the party to which the charges are payable is always the State Treasury, and the State-employed notaries receive remuneration amounting to a percentage of the charges they have generated, in the district at issue here it is the notary who, as a rule, directly collects the fees and only thereafter pays to the State a fixed portion thereof. From that perspective, State-employed notaries working in the district of the OLG Stuttgart are, therefore, in a situation far more akin to that of self-employed notaries.

34. In the light of those two differences alone, the national court and the German Government consequently maintain that the charges levied by State-employed notaries in the district of the OLG Stuttgart do not constitute taxes within the meaning of Article 10 of the directive.

35. I must straight away point out that I do not share that view. In fact, like the Spanish Government and the Commission, I consider that the abovementioned differences in the situations of State-employed notaries in the two districts do not justify a different solution in terms of classifying the charges in question as taxes.

36. Taking first of all the fact that there are both State-employed and self-employed notaries in the district of the OLG Stuttgart, I would point out that a similar situation already existed in the case which gave rise to the order in Gründerzentrum. In point of fact, in that order, the Court stated that ‘it follows from Paragraph 20 of the BNotO that the drawing-up of an official act may be requested of any notary acting in Germany, whether civil servant or self-employed, and an act thus drawn up must be recognised throughout Germany’. ( ) In other words, and contrary to the contentions of the national court and the German Government, in Gründerzentrum also, it was possible to choose between the two types of notary. But, as we have seen, that did not prevent the Court from concluding that the charges collected by State-employed notaries in the district of the OLG Karlsruhe constituted taxes.

37. That explains why the issue of classifying the fees as taxes arises solely in relation to State-employed notaries, regardless of the fact that it is also possible to use the services of self-employed notaries. The issue arises whenever the State collects fees, through its representatives, for the transactions covered by the directive. What basically matters for the purposes of the application of the directive and, in particular, the prohibition laid down by Article 10, is simply the fact that State employees are practising as notaries.

38. From that perspective, the situation which exists in the district of the OLG Stuttgart is exactly the same as the situation in Gründerzentrum. In both districts, civil servants are permitted to practise the profession of notary and collect fees for transactions covered by the directive.

39. Nor does it seem to me that the second circumstance cited by the national court can affect the classification of the fees, namely the fact that in the district of the OLG Stuttgart those fees are payable to the State-employed notaries.

40. According to the Court’s case-law, the only relevant criterion here involves determining whether the fees paid by individuals are at least ‘in part paid to the State in order to subsidise public expenditure’. ( ) It is, therefore, immaterial whether this occurs directly, as in the district of the OLG Karlsruhe, or more indirectly, as in this case. What actually matters is that in both cases, as is apparent from the order for reference, a portion of the fees collected is remitted to the State Treasury.

41. In conclusion, I have to say that the situation of the State-employed notaries in both districts in question is similar, and that the principles set out by the Court in Gründerzentrum are therefore applicable to this case. I would further point out that it is specifically because of those similarities that the Commission, as stated at the hearing, has instituted infringement proceedings against Germany in relation to the rules applicable to State-employed notaries in the whole of the Land of Baden-Württemberg, that is to say State-employed notaries in both the district of the OLG Karlsruhe and the district of the OLG Stuttgart.

42. I therefore propose that the Court should answer the first question to the effect that Council Directive 69/335, as amended by Council Directive 85/303, must be construed as meaning that in a legal system such as that of the district of the OLG Stuttgart, the fees due for the drawing-up of a notarial act attesting a transaction covered by the directive are to be regarded as a tax within the meaning of the directive where the notary is employed as a civil servant and a portion of the fees is remitted to the State which uses them to fund its activities.

The second question

43. By its second question, the national court is asking the Court of Justice whether the fees collected by notaries employed as civil servants cease to constitute a tax if the State waives its claim to the portion of the fees due to it, by ceasing to enforce the regional provision requiring a portion of the fees to be remitted to the State Treasury.

44. In drawing up its question, the national court referred, in particular, to a circular adopted by the Ministry of Justice of the Land of Baden-Württemberg on 22 May 2002, in the wake of the order in Gründerzentrum, requesting notaries to refrain from demanding payment of the fees deemed to be taxes under the directive. In accordance with that order, according to the national court, the State Treasury could waive the portion of the fees due to it if it considered those fees to be in breach of Community law.

45. I would first point out that it is settled case-law that ‘the justification for a preliminary reference, and hence for the jurisdiction of the Court, is not that it enables advisory opinions on general or hypothetical questions to be delivered, but rather that it is necessary for the effective resolution of a dispute’ . ( )

46. That said, it seems to me to be sufficient to point out that this question is based on a hypothetical and uncertain circumstance, namely the mere supposition that the authorities of the Land might decide to waive the fees in question. In other words, this is a mere eventuality which is absolutely a matter for discretion of the public authorities.

47. Nor is there anything in the case-file to indicate that the authorities of the Land intend to exercise that option. Moreover, as the German Government itself points out, at the time of the facts in this case, there were no rules providing for the State to waive such fees, but only a draft amending law to that effect.

48. As regards the communication cited by the national court, it has to be noted that this concerns an issue other than that raised by this question. The communication actually relates solely to the collection of fees by notaries employed as civil servants and requests them to refrain from seeking payment of fees which are incompatible with the directive. But in this case, that payment, which forms the subject-matter of the main proceedings, was indeed requested.

49. It follows that, in my view, this question does not contribute to resolving the dispute pending before the national court, and the Court of Justice is not therefore required to answer it.

50. However, should the Court consider it appropriate to answer the question, it seems to me that for the State to waive its claim to the portion of the fees due to it would not in itself be sufficient to prevent those fees constituting taxes within the meaning of the directive.

51. In so far as the notary is a State employee, and is integrated into the administrative organisation and remunerated by the State as a civil servant, the fees paid to him would in any event, indirectly at least, be paid to the State and would therefore constitute a tax.

VI – Conclusion

52. In conclusion, therefore, I propose that the Court should answer the questions submitted by the Landgericht Stuttgart to the effect that:

Council Directive 69/335/EEC of 17 July 1969 concerning indirect taxes on the raising of capital, as amended by Council Directive 85/303/EEC of 10 June 1985, must be construed as meaning that in a legal system such as that of the district of the OLG Stuttgart, the fees due for the drawing-up of a notarial act attesting a transaction covered by the directive are to be regarded as a tax within the meaning of the directive where the notary is employed as a civil servant and a portion of the fees is remitted to the State which uses them to fund its activities.