THE INSPECTEUR DER REGISTRATIE EN SUCCESSIE REGARDING THE LATTER' S DECISION TO REFUSE REPAYMENT OF THE SUMS PAID BY WAY OF CAPITAL DUTY ON CAPITAL BY THE MANAGER OF A FUND AFTER REGISTERING THE ISSUE OF A NUMBER OF PARTICIPATIONS .
3 ACCORDING TO THE ORDER FOR REFERENCE AMRO AANDELEN FONDS IS AN INVESTMENT FUND THE CAPITAL OF WHICH IS CONSTITUTED BY PAYMENTS MADE AVAILABLE TO THE MANAGER OF THE FUND FOR INVESTMENT IN EXCHANGE FOR WHICH THE PARTICIPANTS RECEIVE PARTICIPATIONS .
4 IN THE ORDER FOR REFERENCE THE NATIONAL COURT HOLDS THAT UNDER NETHERLANDS LAW THE CONTESTED FUND IS A "DOELVERMOGEN" AND THAT THE TRANSACTIONS CARRIED OUT BY IT CONSISTING IN THE RECEIPT OF SUMS OF MONEY FOR INVESTMENT AND THE ADMINISTRATION THEREOF AS AN INVESTMENT FUND IN RETURN FOR THE ISSUE OF PARTICIPATIONS, AS DEFINED IN THE MANAGEMENT CONDITIONS, MUST BE REGARDED AS THE RAISING OF SHARE CAPITAL AND AS SUCH LIABLE TO CAPITAL DUTY UNDER THE NETHERLANDS LAW OF 24 DECEMBER 1970 (" WET OP BELASTINGEN VAN RECHTSVERKEER", STAATSBLAD 611 ).
5 CONSIDERING THAT THERE WERE DOUBTS AS TO WHETHER THAT LAW WAS COMPATIBLE WITH THE AFOREMENTIONED DIRECTIVE 69/335/EEC AND THAT AN INTERPRETATION OF THE TERM "COMPANY" IN ARTICLE 3*(2 ) OF THE DIRECTIVE WAS REQUIRED, THE GERECHTSHOF STAYED THE PROCEEDINGS AND REFERRED THE FOLLOWING QUESTION TO THE COURT FOR A PRELIMINARY RULING :
"WHAT REQUIREMENTS, BESIDES THAT OF OPERATING FOR PROFIT, MUST A GROUP OF PERSONS ( PROVIDERS OF CAPITAL ) WITHOUT LEGAL PERSONALITY SATISFY IN ORDER TO BE REGARDED AS A 'COMPANY' WITHIN THE MEANING OF ARTICLE 3*(2 ) OF THE DIRECTIVE?"
6 REFERENCE IS MADE TO THE REPORT FOR THE HEARING FOR A FULLER ACCOUNT OF THE NATIONAL AND COMMUNITY PROVISIONS AT ISSUE, THE COURSE OF THE PROCEDURE AND THE OBSERVATIONS MADE TO THE COURT, WHICH ARE MENTIONED OR DISCUSSED HEREINAFTER ONLY IN SO FAR AS IS NECESSARY FOR THE REASONING OF THE COURT .
7 THE OBJECT OF DIRECTIVE 69/335 IS THE HARMONIZATION OF INDIRECT TAXES ON THE RAISING OF CAPITAL IN ORDER TO ENCOURAGE FREE MOVEMENT OF CAPITAL . ACCORDING TO THE RECITALS IN THE PREAMBLE ITS AIM IS THAT "DUTY ON THE RAISING OF CAPITAL ... BY A COMPANY OR FIRM SHOULD BE CHARGED ONLY ONCE" AND THAT THEREFORE "THIS DUTY SHOULD BE HARMONIZED, WITH REGARD BOTH TO ITS STRUCTURE AND TO ITS RATES ".
8 ARTICLE 1 PROVIDES THAT THE DUTY, CALLED "CAPITAL DUTY" SHALL BE CHARGED "ON CONTRIBUTIONS OF CAPITAL TO CAPITAL COMPANIES ". IN ORDER TO DEFINE THE MEANING OF "CAPITAL COMPANIES" FOR THE PURPOSES OF THE DIRECTIVE, ARTICLE 3*(1 ) REFERS, ON THE ONE HAND, TO CERTAIN CATEGORIES OF COMPANIES UNDER THE NATIONAL LAW OF THE VARIOUS MEMBER STATES ( ARTICLE 3*(1)*(A )*), AND, ON THE OTHER, TO THE NEGOTIABLE NATURE IN A STOCK EXCHANGE OF THE SHARES ( ARTICLE 3*(1)*(B )*) AND TO THE FREE NEGOTIABILITY OF THE SHARES WHERE THEY REPRESENT THE RISK SHARED . THE DEFINITION OF CAPITAL COMPANY IS THUS WIDE AND NOT