Judgment of the Court (Third Chamber) of 15 July 1982. - Felicitas Rickmers-Linie KG & Co. v Finanzamt für Verkehrsteuern, à Hambourg. - Reference for a preliminary ruling: Finanzgericht Hamburg - Germany. - Capital duties on the raising of capital - Nominal amount of company shares. - Case 270/81.



European Court reports 1982 Page 02771

Spanish special edition Page 00849



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

1 . TAX PROVISIONS - HARMONIZATION OF LAWS - INDIRECT TAXES ON THE RAISING OF CAPITAL - DUTY ON CONTRIBUTIONS OF CAPITAL TO CAPITAL COMPANIES - BASIS OF ASSESSMENT - REFERENCE TO THE NOMINAL AMOUNT OF THE SHARES IN THE COMPANY - CONCEPT OF ' ' NOMINAL AMOUNT ' ' - COMMUNITY CONCEPT

( COUNCIL DIRECTIVE 69/335 , ART . 5 ( 2 ))

2 . TAX PROVISIONS - HARMONIZATION OF LAWS - INDIRECT TAXES ON THE RAISING OF CAPITAL - DUTY ON CONTRIBUTIONS OF CAPITAL TO CAPITAL COMPANIES - BASIS OF ASSESSMENT - REFERENCE TO THE NOMINAL AMOUNT OF THE SHARES IN THE COMPANY - CONDITIONS

( COUNCIL DIRECTIVE 69/335 , ART . 5 ( 2 ))

3 . MEASURES ADOPTED BY THE INSTITUTIONS - DIRECTIVES - EFFECT - CORRECT IMPLEMENTATION BY THE MEMBER STATES - EFFECTS ON INDIVIDUALS OF NATIONAL IMPLEMENTING MEASURES

( EEC TREATY , ART . 189 )

Summary

1 . THE CONCEPT OF ' ' NOMINAL AMOUNT ' ' WITHIN THE MEANING OF ARTICLE 5 ( 2 ) OF DIRECTIVE 69/335 CONCERNING INDIRECT TAXES ON THE RAISING OF CAPITAL 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 . THE HARMONIZATION OF TAXES SUCH AS CAPITAL DUTY ON THE RAISING OF CAPITAL , NOT ONLY IN RELATION TO THE RATES BUT ALSO TO THE STRUCTURE THEREOF , IMPLIES THAT THE BASIS OF ASSESSMENT IS DETERMINED IN EACH MEMBER STATE ON THE BASIS OF OBJECTIVE CRITERIA , HAVING A UNIFORM SCOPE WITHIN THE COMMUNITY AND FREE FROM THE INFLUENCE OF NATIONAL LAWS . IT FOLLOWS THAT THE INTERPRETATION OF THE CONCEPT AT ISSUE , CONSIDERED IN ITS ENTIRETY , MAY NOT BE LEFT TO THE DISCRETION OF EACH MEMBER STATE .

2.THE SHARES IN A COMPANY HAVE A NOMINAL AMOUNT WITHIN THE MEANING OF ARTICLE 5 ( 2 ) OF DIRECTIVE 69/335/EEC WHEN THE LEGAL STRUCTURE OF THE TYPE OF COMPANY TO WHICH THE COMPANY CONCERNED BELONGS INCLUDES AMOUNTS FIXED IN CASH , INTENDED TO QUANTIFY THE VALUE OF THE MEMBERS ' CONTRIBUTION TO THE RAISING OF CAPITAL IN THAT COMPANY AND TO CHARACTERIZE IN DURABLE FASHION THE RELATIONS BETWEEN THE MEMBERS AND THE COMPANY .

IT IS FOR THE NATIONAL COURT , TAKING INTO ACCOUNT THE CRITERIA FOR INTERPRETATION LAID DOWN BY THE COURT OF JUSTICE , TO CARRY OUT THE NECESSARY APPRAISAL BOTH OF THE RELEVANT NATIONAL RULES AND THE PROVISIONS OF THE COMPANY ' S DOCUMENTS OF CONSTITUTION IN ORDER TO ESTABLISH WHETHER THAT IS THE CASE .

3.WHENEVER A DIRECTIVE IS CORRECTLY IMPLEMENTED , ITS EFFECTS REACH INDIVIDUALS THROUGH THE INTERMEDIARY OF THE IMPLEMENTING MEASURES ADOPTED BY THE MEMBER STATE CONCERNED , WITHOUT ITS BEING NECESSARY TO EXAMINE THE QUESTION WHETHER THE PROVISION IN QUESTION MEETS THE CONDITIONS WHICH MUST BE FULFILLED FOR INDIVIDUALS TO BE ABLE TO RELY UPON IT BEFORE A NATIONAL COURT IN THE EVENT OF THE DIRECTIVE ' S NOT BEING CORRECTLY IMPLEMENTED .

Parties

IN CASE 270/81

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE FINANZGERICHT ( FINANCE COURT ) HAMBURG FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

FELICITAS RICKMERS-LINIE KG & CO .

V

Subject of the case

FINANZAMT FUR VERKEHRSTEUERN ( TAX OFFICE FOR TRANSFER DUTIES ), HAMBURG , ON THE INTERPRETATION OF ARTICLE 5 ( 2 ) OF COUNCIL DIRECTIVE 69/335/EEC OF 17 JULY 1969 CONCERNING INDIRECT TAXES ON THE RAISING OF CAPITAL ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1969 ( II ), P . 412 ),

Grounds

1 BY ORDER OF 17 SEPTEMBER 1981 , WHICH WAS RECEIVED AT THE COURT ON 6 OCTOBER 1981 , THE FINANZGERICHT ( FINANCE COURT ) HAMBURG REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY TWO QUESTIONS ON THE INTERPRETATION OF ARTICLE 5 ( 2 ) OF COUNCIL DIRECTIVE 69/335/EEC OF 17 JULY 1969 CONCERNING INDIRECT TAXES ON THE RAISING OF CAPITAL ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1969 ( II ), P . 412 ) IN ORDER TO ENABLE IT TO DETERMINE WHETHER , FOR PURPOSES OF THE ASSESSMENT OF CAPITAL DUTY , THE LIMITED PARTNERS ' SHARES IN A LIMITED PARTNERSHIP UNDER GERMAN LAW ( KOMMANDITGESELLSCHAFT ) HAVE A NOMINAL AMOUNT WITHIN THE MEANING OF THE DIRECTIVE .

2 THOSE QUESTIONS AROSE IN THE COURSE OF A DISPUTE BETWEEN THE KOMMANDITGESELLSCHAFT FELICITAS RICKMERS-LINIE KG & CO . AND THE GERMAN TAX AUTHORITY OVER THE ASSESSMENT OF CAPITAL DUTY UNDER THE KAPITALVERKEHRSTEUERGESETZ ( LAW ON CAPITAL TRANSACTIONS TAX ) OF 17 NOVEMBER 1972 , WHICH WAS ADOPTED BY THE FEDERAL REPUBLIC OF GERMANY IN ORDER TO IMPLEMENT THE ABOVE-MENTIONED DIRECTIVE . THE DISPUTE RELATED TO THE DETERMINATION OF THE BASIS OF ASSESSMENT ON WHICH CAPITAL DUTY MUST BE CHARGED IN THIS CASE .

3 ARTICLE 1 OF DIRECTIVE 69/335 PROVIDES THAT CAPITAL DUTY IS TO BE CHARGED ON CONTRIBUTIONS OF CAPITAL TO CAPITAL COMPANIES , WHICH ARE DEFINED IN ARTICLE 3 ( 1 ) OF THE DIRECTIVE . ACCORDING TO ARTICLE 3 ( 2 ), ANY OTHER COMPANY , FIRM , ASSOCIATION OR LEGAL PERSON OPERATING FOR PROFIT IS TO BE DEEMED TO BE A CAPITAL COMPANY . HOWEVER , A MEMBER STATE IS TO HAVE THE RIGHT NOT TO CONSIDER IT AS SUCH FOR THE PURPOSE OF CHARGING CAPITAL DUTY . AS IS CLEAR FROM THE ORDER MAKING THE REFERENCE , IN RELATION TO A KOMMANDITGESELLSCHAFT THE KAPITALVERKEHRSTEUERGESETZ MAKES USE OF THE OPTION GRANTED BY ARTICLE 3 ( 2 ) OF THE DIRECTIVE TO EXCLUDE CERTAIN CATEGORIES OF COMPANY , FIRM , ASSOCIATION OR LEGAL PERSON FROM CAPITAL DUTY . HOWEVER , IN PARAGRAPH 5 ( 2 ) ( 3 ), IT PROVIDES THAT KOMMANDITGESELLSCHAFTEN WHICH HAVE AMONG THEIR GENERAL PARTNERS EITHER A CAPITAL COMPANY STRICTO SENSU OR ANOTHER KOMMANDITGESELLSCHAFT WHICH HAS AMONG ITS GENERAL PARTNERS A CAPITAL COMPANY ARE TO BE SUBJECT TO CAPITAL DUTY .

4 IN RELATION TO THE BASIS OF ASSESSMENT OF CAPITAL DUTY , ARTICLE 5 ( 2 ) OF DIRECTIVE 69/335 , IN THE VERSION IN FORCE AT THE MATERIAL TIME , PROVIDES , SO FAR AS IS RELEVANT TO THIS CASE , THAT ' ' THE AMOUNT ON WHICH THE DUTY IS CHARGED SHALL NOT . . . BE LESS THAN THE ACTUAL VALUE OF THE SHARES IN THE COMPANY ALLOTTED OR BELONGING TO EACH MEMBER OR THE NOMINAL AMOUNT OF SUCH SHARES IF THE LATTER EXCEEDS THEIR ACTUAL VALUE ' ' . IN APPLICATION OF THAT PROVISION , PARAGRAPH 8 OF THE KAPITALVERKEHRSTEUERGESETZ PROVIDES THAT ' ' IN SO FAR AS MEMBERSHIP RIGHTS HAVE A NOMINAL VALUE , THE VALUE OF THE MEMBERSHIP RIGHTS SHALL BE . . . AT LEAST EQUAL TO THE NOMINAL VALUE AFTER DEDUCTION OF THE CONTRIBUTIONS OUTSTANDING ON THEM ' ' .

5 IT IS CLEAR FROM THE ORDER MAKING THE REFERENCE THAT FELICITAS RICKMERS-LINIE KG & CO . WAS ASSESSED TO CAPITAL DUTY BECAUSE , BY VIRTUE OF THE ENTRY OF AN AKTIENGESELLSCHAFT ( COMPANY LIMITED BY SHARES ) AS A GENERAL PARTNER THE KOMMANDITGESELLSCHAFT WHICH WAS A GENERAL PARTNER IN FELICITAS RICKMERS-LINIE KG AND CO ., THE LATTER FELL WITHIN THE CATEGORY OF COMPANIES REFERRED TO IN PARAGRAPH 5 ( 2 ) ( 3 ) OF THE KAPITALVERKEHRSTEUERGESETZ . IN ACCORDANCE WITH THE RELEVANT GERMAN CASE-LAW , THAT TRANSACTION WAS REGARDED AS AN ACQUISITION OF SHARES IN A CAPITAL COMPANY BY THE LIMITED PARTNERS OF FELICITAS RICKMERS-LINIE KG & CO ., THUS AS A TRANSACTION SUBJECT TO CAPITAL DUTY UNDER THE PROVISIONS OF THE KAPITALVERKEHRSTEUERGESETZ .

6 IT IS NOT DISPUTED THAT AT THE TIME OF THE TRANSACTION IN QUESTION THE ACTUAL VALUE OF THE SHARES IN FELICITAS RICKMERS-LINIE KG & CO ., WAS NIL . HOWEVER , THE TAX OFFICE TOOK THE VIEW THAT THE SUM OF DM 6 480 000 , WHICH WAS ENTERED IN THE COMMERCIAL REGISTER IN RESPECT OF THE LIMITED PARTNERS ' SHARES , CONSTITUTED THE NOMINAL AMOUNT OF SUCH SHARES . CONSEQUENTLY , IT ASSESSED CAPITAL DUTY ON THAT BASIS . FELICITAS RICKMERS-LINIE KG & CO . BROUGHT AN ACTION BEFORE THE FINANZGERICHT HAMBURG CHALLENGING THAT DECISION . IT CLAIMED THAT SHARES IN A KOMMANDITGESELLSCHAFT HAVE NO NOMINAL VALUE AND THAT ONLY THE ACTUAL VALUE , IN THIS CASE NIL , COULD BE TAKEN INTO ACCOUNT .

7 CONSIDERING THAT THE OUTCOME OF THE BASE DEPENDED ON THE INTERPRETATION OF ARTICLE 5 ( 2 ) OF DIRECTIVE 69/335 , THE FINANZGERICHT HAMBURG REFERRED TO THE COURT FOR A PRELIMINARY RULING THE FOLLOWING QUESTIONS :

' ' 1 . IS ARTICLE 5 ( 2 ) OF THE COUNCIL DIRECTIVE OF 17 JULY 1969 CONCERNING INDIRECT TAXES ON THE RAISING OF CAPITAL ( 69/335/EEC ) TO BE INTERPRETED AS MEANING THAT EVEN SHARES IN LIMITED PARTNERSHIPS ( KOMMANDITGESELLSCHAFTEN ) HAVE A ' NOMINAL AMOUNT ' WITHIN THE MEANING OF THAT PROVISION , AND , IF SO , WHICH ELEMENT IN A LIMITED PARTNERSHIP REPRESENTS THAT NOMINAL AMOUNT?

2 . IS ARTICLE 5 ( 2 ) OF DIRECTIVE 69/335/EEC DIRECTLY APPLICABLE , IN THE SENSE THAT A TAXPAYER MAY RELY ON IT BEFORE A COURT SO AS TO BE TAXED IN ACCORDANCE WITH IT?

' '

8 IN THE OBSERVATIONS WHICH IT SUBMITTED TO THE COURT , THE PLAINTIFF IN THE MAIN ACTION TOOK THE VIEW THAT IT WAS NECESSARY FIRST TO REPLY TO THE QUESTION UNDERLYING THE QUESTION PUT TO THE COURT BY THE FINANZGERICHT HAMBURG , NAMELY , WHETHER A TRANSACTION SUCH AS THAT CONCERNED IN THIS CASE MAY BE CONSIDERED AS A TRANSACTION SUBJECT TO CAPITAL DUTY WITHIN THE MEANING OF THE DIRECTIVE , EVEN THOUGH IT IS A MERE FICTION SO FAR AS CAPITAL DUTY IS CONCERNED AND DOES NOT AFFECT THE EXISTENCE OF THE ORGANIZATION IN QUESTION OR ALTER ITS GENERAL LEGAL AND ECONOMIC STRUCTURE .

9 HOWEVER , THAT QUESTION , WHICH INVOLVES THE INTERPRETATION OF ARTICLES 3 ( 2 ) AND 4 OF THE DIRECTIVE , WAS NOT RAISED BY THE FINANZGERICHT HAMBURG , WHICH EXPRESSED NO DOUBT IN ITS ORDER MAKING THE REFERENCE THAT A TRANSACTION SUCH AS THAT CONCERNED IN THIS CASE WAS SUBJECT TO CAPITAL DUTY . IT IS THEREFORE UNNECESSARY TO GIVE A RULING ON THAT QUESTION IN THE FRAMEWORK OF THESE PROCEEDINGS FOR A PRELIMINARY RULING .

THE FIRST QUESTION

10 THE FIRST QUESTION SUBMITTED BY THE FINANZGERICHT HAMBURG CONCERNS THE INTERPRETATION OF THE CONCEPT OF ' ' NOMINAL AMOUNT ' ' WITHIN THE MEANING OF ARTICLE 5 ( 2 ) OF DIRECTIVE 69/335 .

11 BOTH THE PLAINTIFF IN THE MAIN ACTION AND THE COMMISSION INFER FROM THE LEGAL STRUCTURE OF A KOMMANDITGESELLSCHAFT , AS IT EMERGES FROM THE PROVISIONS OF THE RELEVANT GERMAN LEGISLATION , THAT THE SHARES IN AN ORGANISM OF THAT KIND HAVE NO NOMINAL AMOUNT IN THE SENSE DESCRIBED ABOVE . IN SUPPORT OF THIS VIEW THEY CONTEND THAT THAT TYPE OF ORGANISM IS CHARACTERIZED BY THE FACT THAT THE LIMITED PARTNERS ' CONTRIBUTIONS DO NOT NECESSARILY HAVE TO BE EXPRESSED IN CASH , THAT THEIR SHARE IN THE CAPITAL MAY BE SUBJECT TO CONSTANT FLUCTUATIONS , AND THAT THE AMOUNT ENTERED IN THE COMMERCIAL REGISTER IN RESPECT OF EACH LIMITED PARTNER IS OF NO IMPORTANCE EXCEPT WITH REGARD TO THE CREDITORS OF THE KOMMANDITGESELLSCHAFT .

12 IN ITS WRITTEN OBSERVATIONS , THE GERMAN TAX AUTHORITY CONTENDED THAT ARTICLE 5 ( 2 ) OF DIRECTIVE 69/335 MUST BE CAPABLE OF APPLICATION IN ITS ENTIRETY TO ANY ORGANISM WHICH IS DEEMED TO BE A CAPITAL COMPANY , INCLUDING THE KOMMANDITGESELLSCHAFT REFERRED TO IN PARAGRAPH 5 ( 2 ) ( 3 ) OF THE KAPITALVERKEHRSTEUERGESETZ . DURING THE ORAL PROCEDURE IT ADDED THAT IN ANY EVENT THE SHARES IN SUCH A KOMMANDITGESELLSCHAFT COULD HAVE A NOMINAL AMOUNT , IF ITS LEGAL STRUCTURE RESEMBLED THAT OF CAPITAL COMPANIES , IN PARTICULAR IN RELATION TO THE LIMITED PARTNERS ' PARTICIPATION IN THE PROFITS AND LOSSES AND ALSO THEIR COMPULSORY CONTRIBUTION AND THEIR LIABILITY AS AGAINST THIRD PARTIES .

13 ON THE OTHER HAND , THE UNITED KINGDOM TOOK THE VIEW IN ITS WRITTEN OBSERVATIONS THAT THE CONCEPT OF ' ' NOMINAL AMOUNT ' ' WITHIN THE MEANING OF ARTICLE 5 ( 2 ) OF DIRECTIVE 69/335 COULD BE APPLICABLE ONLY IF THE SHARES IN THE COMPANY HAD A RECOGNIZED NOMINAL AMOUNT UNDER NATIONAL LAW . DURING THE ORAL PROCEDURE IT STATED THAT THAT WAS THE CASE WHERE , ACCORDING TO THE DETERMINATION MADE BY THE NATIONAL COURT , THE SHARES RELATED TO AN AMOUNT REPRESENTING THE CAPITAL RAISED .

14 IT SHOULD FIRST BE STATED THAT THE CONCEPT IN QUESTION 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 . THE HARMONIZATION OF TAXES SUCH AS CAPITAL DUTY ON THE RAISING OF CAPITAL , NOT ONLY IN RELATION TO THE RATES BUT ALSO TO THE STRUCTURE THEREOF , IMPLIES THAT THE BASIS OF ASSESSMENT IS DETERMINED IN EACH MEMBER STATE ON THE BASIS OF OBJECTIVE CRITERIA , HAVING A UNIFORM SCOPE WITHIN THE COMMUNITY AND FREE FROM THE INFLUENCE OF NATIONAL LAWS . IT FOLLOWS THAT THE INTERPRETATION OF THE CONCEPT AT ISSUE , CONSIDERED IN ITS ENTIRETY , MAY NOT BE LEFT TO THE DISCRETION OF EACH MEMBER STATE . IT IS THEREFORE NECESSARY TO PROVIDE THE NATIONAL COURT WITH CRITERIA WHICH WILL ENABLE IT TO DETERMINE WHETHER THE ORGANIZATION IN QUESTION FULFILS THE CRITERIA LAID DOWN BY THE COMMUNITY RULES .

15 ACCORDING TO ITS ORDINARY MEANING ' ' NOMINAL AMOUNT ' ' REFERS TO AN AMOUNT , IN PRINCIPLE UNCHANGEABLE AND EXPRESSED IN CASH , WHICH MAY BE DIFFERENT FROM THE TRUE ECONOMIC VALUE . IN THE CONTEXT OF GENUINE CAPITAL COMPANIES , THE EXPRESSION IS USED TO DENOTE THE QUANTIFIED VALUE OF THE MEMBER ' S COMPULSORY CONTRIBUTION TO THE CAPITAL COMPANY , WHICH CANNOT BE WAIVED EITHER BY THE COMPANY OR BY THE OTHER MEMBERS , AND WHICH CHARACTERIZES IN DURABLE FASHION THE RELATIONSHIP BETWEEN THE MEMBER AND THE COMPANY .

16 IN RELATION TO THE USE OF THAT EXPRESSION IN ARTICLE 5 ( 2 ) OF DIRECTIVE 69/335 , IT SHOULD FURTHER BE POINTED OUT THAT ACCORDING TO THE PRINCIPLES ON WHICH HARMONIZED CAPITAL DUTY IS BASED , SUCH DUTY SHOULD BE CHARGED ONLY ON TRANSACTIONS WHICH CONSTITUTE IN LAW THE RAISING OF CAPITAL AND ONLY IN SO FAR AS THEY CONTRIBUTE TO INCREASING THE COMPANY ' S ECONOMIC POTENTIAL . IN VIEW OF THAT OBJECT , ONLY AN AMOUNT CORRESPONDING TO THE VALUE WHICH MUST BE CONTRIBUTED TO THE CAPITAL COMPANY BY A MEMBER AND BY MEANS OF WHICH THE MEMBER CONTRIBUTES TO THE RAISING OF CAPITAL , MAY BE TAKEN INTO CONSIDERATION AS THE ' ' NOMINAL AMOUNT ' ' OF SHARES WITHIN THE MEANING OF THE PROVISION IN QUESTION .

17 IT FOLLOWS THAT THE SHARES OF MEMBERS IN A COMPANY HAVE A NOMINAL AMOUNT WITHIN THE MEANING OF ARTICLE 5 ( 2 ) WHEN THE COMPANY ' S LEGAL STRUCTURE INCLUDES FIXED AMOUNTS EXPRESSED IN CASH , WHICH ARE INTENDED TO QUANTIFY THE VALUE OF THE MEMBERS ' CONTRIBUTION TO THE RAISING OF CAPITAL IN THAT COMPANY AND TO CHARACTERIZE IN A DURABLE FASHION THE RELATIONSHIP BETWEEN THE MEMBERS AND THE COMPANY .

18 HAVING REGARD TO 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 , THE CONCEPT ' ' NOMINAL AMOUNT ' ' MAY NOT BE APPLIED AUTOMATICALLY TO EACH TYPE OF COMPANY , FIRM , ASSOCIATION OR LEGAL PERSON REFERRED TO IN THAT PROVISION IN SUCH A WAY THAT EACH MUST NECESSARILY BE REGARDED AS HAVING A NOMINAL AMOUNT . IT IS 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 , MAKES IT POSSIBLE TO CONCLUDE THAT THERE IS A NOMINAL AMOUNT .

19 HAVING REGARD TO THE ABOVE-MENTIONED CRITERIA , IT SHOULD BE NOTED THAT IN A KOMMANDITGESELLSCHAFT SUCH AS THAT DESCRIBED BY THE FINANZGERICHT HAMBURG , NAMELY ONE IN WHICH THE LIMITED PARTNERS ' CONTRIBUTION IS NOT NECESSARILY EXPRESSED IN CASH , IN WHICH THE SHARE IN THE CAPITAL MAY BE SUBJECT TO CONSTANT FLUCTUATIONS AND IN RELATION TO WHICH THE AMOUNT ENTERED IN THE COMMERCIAL REGISTER IN RESPECT OF EACH LIMITED PARTNER IS INTENDED ONLY TO LIMIT THE LATTER ' S POSSIBLE LIABILITY IN RELATION TO CREDITORS OF THE KOMMANDITGESELLSCHAFT , THE SHARES DO NOT HAVE A NOMINAL AMOUNT WITHIN THE MEANING OF THE PROVISION IN QUESTION .

20 HOWEVER , THE GERMAN TAX AUTHORITY HAS DENIED THAT THE BODIES MENTIONED IN PARAGRAPH 5 ( 2 ) ( 3 ) OF THE KAPITALVERKEHRSTEUERGESETZ , AND IN PARTICULAR THE PLAINTIFF IN THE MAIN ACTION WHOSE DOCUMENTS OF CONSTITUTION CONTAIN SPECIAL PROVISIONS , IN FACT DISPLAY SUCH CHARACTERISTICS .

21 NEVERTHELESS , THE QUESTION WHETHER BODIES SUCH AS THOSE COVERED BY PARAGRAPH 5 ( 2 ) ( 3 ) OF THE KAPITALVERKEHRSTEUERGESETZ CONSTITUTE A TYPE OF ORGANIZATION WHICH IS DIFFERENT FROM THAT OF THE KOMMANDITGESELLSCHAFT IN GENERAL IS A MATTER PURELY OF NATIONAL LAW , AS IS THE QUESTION , WHERE RELEVANT , OF THE LEGAL STRUCTURE OF SUCH AN ORGANIZATION . IT IS THEREFORE FOR THE NATIONAL COURT TO DETERMINE THE TYPE OF ORGANIZATION CONCERNED IN THIS CASE AND TO ASSESS ITS CHARACTERISTICS , TAKING INTO ACCOUNT THE CRITERIA CONTAINED IN THE COMMUNITY RULES .

22 THE ANSWER TO THE FIRST QUESTION SHOULD THEREFORE BE THAT THE SHARES IN A COMPANY HAVE A NOMINAL AMOUNT WITHIN THE MEANING OF ARTICLE 5 ( 2 ) OF DIRECTIVE 69/335 WHEN THE LEGAL STRUCTURE OF THE TYPE OF COMPANY TO WHICH THE COMPANY CONCERNED BELONGS INCLUDES AMOUNTS FIXED IN CASH , INTENDED TO QUANTIFY THE VALUE OF THE MEMBERS ' CONTRIBUTION TO THE RAISING OF CAPITAL IN THAT COMPANY AND TO CHARACTERIZE IN DURABLE FASHION THE RELATIONS BETWEEN THE MEMBERS AND THE COMPANY . IT IS FOR THE NATIONAL COURT , TAKING INTO ACCOUNT THE CRITERIA FOR INTERPRETATION LAID DOWN BY THE COURT OF JUSTICE , TO CARRY OUT THE NECESSARY APPRAISAL BOTH OF THE RELEVANT NATIONAL RULES AND OF THE PROVISIONS OF THE COMPANY ' S DOCUMENTS OF CONSTITUTION IN ORDER TO ESTABLISH WHETHER THAT IS THE CASE .

THE SECOND QUESTION

23 THE SECOND QUESTION PUT BY THE FINANZGERICHT HAMBURG IS WHETHER ARTICLE 5 ( 2 ) OF DIRECTIVE 69/335 MAY BE RELIED UPON BY A TAXPAYER BEFORE A NATIONAL COURT IN ORDER TO OBTAIN AN ASSESSMENT OF CAPITAL DUTY IN ACCORDANCE WITH THAT DIRECTIVE .

24 IN THAT REGARD , IT SHOULD BE STATED THAT WHENEVER A DIRECTIVE IS CORRECTLY IMPLEMENTED , ITS EFFECTS REACH INDIVIDUALS THROUGH THE INTERMEDIARY OF THE IMPLEMENTING MEASURES ADOPTED BY THE MEMBER STATE CONCERNED .

25 AS IS CLEAR FROM THE ORDER MAKING THE REFERENCE , A LEGISLATIVE PROVISION DESIGNED TO IMPLEMENT ARTICLE 5 ( 2 ) OF DIRECTIVE 69/335 WAS ADOPTED IN THE FEDERAL REPUBLIC OF GERMANY . MOREOVER , THE FINANZGERICHT HAMBURG STATED IN ITS ORDER MAKING THE REFERENCE THAT NATIONAL PROVISIONS HAD TO BE INTERPRETED IN ACCORDANCE WITH THE DIRECTIVE , SINCE THE GERMAN LEGISLATURE INTENDED TO TRANSPOSE THE DIRECTIVE INTO GERMAN LAW .

26 IT FOLLOWS THAT IN THIS CASE THE EFFECTS OF THE DIRECTIVE CAN REACH INDIVIDUALS THROUGH THE INTERMEDIARY OF THE IMPLEMENTING MEASURES ADOPTED BY THE MEMBER STATE CONCERNED . THEREFORE IT IS UNNECESSARY TO EXAMINE THE QUESTION WHETHER ARTICLE 5 ( 2 ) MEETS THE CONDITIONS WHICH MUST BE FULFILLED FOR INDIVIDUALS TO BE ABLE TO RELY UPON IT BEFORE A NATIONAL COURT IN THE EVENT OF THE DIRECTIVE ' S NOT BEING CORRECTLY IMPLEMENTED .

27 UNDER THOSE CIRCUMSTANCES , IT IS NOT NECESSARY TO REPLY TO THE SECOND QUESTION PUT BY THE FINANZGERICHT HAMBURG .

Decision on costs

COSTS

28 THE COSTS INCURRED BY THE UNITED KINGDOM AND BY THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE . AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED , IN THE NATURE OF A STEP IN THE ACTION BEFORE THE NATIONAL COURT , THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

Operative part

ON THOSE GROUNDS ,

THE COURT ( THIRD CHAMBER ),

IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE FINANZGERICHT HAMBURG BY ORDER OF 17 SEPTEMBER 1981 , HEREBY RULES THAT :

1 . THE SHARES IN A COMPANY HAVE A NOMINAL AMOUNT WITHIN THE MEANING OF ARTICLE 5 ( 2 ) OF DIRECTIVE 69/335/EEC WHEN THE LEGAL STRUCTURE OF THE TYPE OF COMPANY TO WHICH THE COMPANY CONCERNED BELONGS INCLUDES AMOUNTS FIXED IN CASH , INTENDED TO QUANTIFY THE VALUE OF THE MEMBERS ' CONTRIBUTION TO THE RAISING OF CAPITAL IN THAT COMPANY AND TO CHARACTERIZE IN DURABLE FASHION THE RELATIONS BETWEEN THE MEMBERS AND THE COMPANY .

2 . IT IS FOR THE NATIONAL COURT , TAKING INTO ACCOUNT THE CRITERIA FOR INTERPRETATION LAID DOWN BY THE COURT OF JUSTICE , TO CARRY OUT THE NECESSARY APPRAISAL BOTH OF THE RELEVANT NATIONAL RULES AND THE PROVISIONS OF THE COMPANY ' S DOCUMENTS OF CONSTITUTION IN ORDER TO ESTABLISH WHETHER THAT IS THE CASE .