Badischer Winzerkeller eG v Land Baden-Württemberg.
Date: 2006-06-15
19. The Court has already had occasion to point out that the prohibition under Article 10(c) of the directive is in addition to those set out in Article 10(a) and (b) of that directive, which refers to the scenarios described in Article 4 of the directive (see, to that effect, Case C-152/97 AGAS  [1998] ECR I-6553, paragraph 21). That prohibition is justified by the fact that, even though the taxes in question are not imposed on capital contributions as such, they are nevertheless imposed on account of formalities connected with the company’s legal form, in other words on account of the instrument employed for raising capital, so that their continued existence would similarly risk frustrating the aims of the directive (Case C-2/94 Denkavit Internationaal and Others  [1996] ECR I-2827, paragraph 23, and AGAS , paragraph 21).
25. According to consistent case-law, it has to be determined whether rectification of the land register, while not formally constituting a procedure which is required before the legal person concerned commences business, is none the less necessary for the carrying‑on of that business (see, in relation to the registration of increases in capital, Case C-188/95 Fantask and Others  [1997] ECR I‑6783, paragraph 22, and Case C‑56/98 Modelo (‘Modelo I’)  [1999] ECR I‑6427, paragraph 25).
26. In this regard, the Court has held many times that where a transaction carried out by a legal person, such as the increase of its company capital or the amendment of its constitution, is subject to legal formalities under national law, that formality is necessary for the carrying‑on of that legal person’s business (see, in particular, Modelo I , paragraph 26; Case C-19/99 Modelo ( ‘ Modelo II ’ )  [2000] ECR I‑7213, paragraph 26; Case C-134/99 IGI  [2000] ECR I‑7717, paragraph 24; Case C‑206/99 SONAE  [2001] ECR I‑4679, paragraph 30; and Case C‑426/98 Commission  v Greece  [2002] ECR I-2793, paragraph 30) .
27. The same considerations necessarily apply in the case of a transaction such as that at issue in the main proceedings, namely a legal person’s acquisition of land by means of a merger and takeover, which, under German law, is subject to compulsory rectification of the land register.
28. It follows that a fee charged for rectification of the land register, such as that at issue in the main proceedings, constitutes a tax levied for a prior formality to which a legal person operating for profit may be subject by reason of its legal form.
29. Having regard to the above considerations, the answer to the first question must be that a fee charged for rectification of the land register, such as that at issue in the main proceedings, falls in principle within the prohibition under Article 10(c) of the directive.
The second and third questions
31. Article 12(1) of the directive establishes an exhaustive list of the taxes and duties other than capital duty which may, notwithstanding Articles 10 and 11, be imposed on capital companies in connection with the transactions referred to in those latter articles (see, to that effect, Case 36/86 Dansk Sparinvest  [1988] ECR 409, paragraph 9, and Joined Cases C‑71/91 and C-178/91 Ponente Carni and Cispadana Costruzioni  [1993] ECR I-1915, paragraph 24).
32. The transfer duties referred to in Article 12(1)(b) of the directive must be regarded as registration fees levied in connection with certain transactions involving the transfer of businesses or immovable property, on the basis of general and objective criteria (Case C-42/96 Immobiliare SIF  [1997] ECR I‑7089, paragraph 34).
33. That provision draws no distinction between the kinds of transfer duties which may be levied by the Member States. It permits Member States, in general terms, to levy, separately from capital duty, duties in respect of which the operative event is objectively linked to the transfer of businesses or immovable property (see Immobiliare SIF , paragraph 35).
43. In proceedings under Article 234 EC, which is based on a clear separation of functions between the national courts and the Court of Justice, the interpretation of national law and any assessment of the facts in the case is a matter for the national court (see, in particular, Case C‑295/97 Piaggio  [1999] ECR I‑3735, paragraph 29; Joined Cases C‑175/98 and C‑177/98 Lirussi and Bizzaro  [1999] ECR I‑6881, paragraph 37; and Case C‑282/00 RAR  [2003] ECR I‑4741, paragraph 46).