Isabelle Gielen v Ministerraad.
Date: 2014-10-09
20. It should be recalled at the outset that, as is apparent from the preamble to Directive 69/335, which was replaced by Directive 2008/7 as from 1 January 2009, that directive seeks to promote the free movement of capital, which is considered essential to the creation of an economic union whose characteristics are similar to those of a domestic market. As far as concerns taxes on the raising of capital, the pursuit of that objective presupposes the abolition of indirect taxes in force in the Member States until then and imposing in their place a duty charged only once in the internal market and at the same level in all the Member States (see judgment in HSBC Holdings and Vidacos Nominees , C‑569/07, EU:C:2009:594, paragraph 28).
22. As regards Article 11(b) of Directive 69/335, the wording of which is reproduced in Article 5(2)(b) of Directive 2008/7, the Court stated, in its judgment in FECSA and ACESA (EU:C:1998:508, paragraph 18), that, although that article does not expressly mention the repayment of debenture loans, nevertheless, prohibiting the levying of duty when debenture loans are issued but authorising it when such loans are repaid would have the effect, contrary to the objective pursued by the directive, of taxing loans as overall operations for raising capital.
23. Similarly, in the judgment in Commission v Belgium (EU:C:2004:450, paragraph 32), the Court held that, while Article 11(a) of Directive 69/335, which is worded in identical terms to Article 5(2)(a) of Directive 2008/7, does not expressly mention the first acquisition of stocks or the delivery of bearer securities, the fact remains that to permit the levying of tax on the initial acquisition of a newly issued security or tax on the physical delivery of bearer securities upon their issue amounts in reality to taxing the very issue of that security as it forms an integral part of an overall transaction with regard to the raising of capital.
24. It is thus apparent from the case-law of the Court relating to Article 11 of Directive 69/335, and in particular from the judgments in FECSA and ACESA (EU:C:1998:508) and in Commission v Belgium (EU:C:2004:450), that, in accordance with the objectives of that directive, the prohibition of the taxation of transactions for the raising of capital also applies to transactions which are not expressly covered by that prohibition, where such taxation is tantamount to taxing a transaction forming an integral part of an overall transaction with regard to the raising of capital. That interpretation is capable of being applied to Article 5(2) of Directive 2008/7 which reproduces, in identical terms, Article 11 of Directive 69/335.
26. Therefore, by establishing a tax on that conversion, Article 167 of the Code amounts in reality to taxing the very issue of that security as it forms an integral part of an overall transaction with regard to the raising of capital, thereby undermining the effectiveness of Article 5(2)(a) of the directive (see, to that effect, judgments in FECSA and ACESA , EU:C:1998:508, paragraphs 18 and 19, and in Commission v Belgium , EU:C:2004:450, paragraphs 32 and 33).
28. As regards the question whether such a tax may be justified by Article 6(1) of Directive 2008/7, which allows Member States to charge a duty on the transfer of securities, the Court has already had occasion to rule that Article 12 of Directive 69/335, the wording of which was substantially the same as that of Article 6 of Directive 2008/7, is an exception to the prohibition in principle of taxes with the same characteristics as capital duty (judgment in Grillo Star Fallimento , C‑443/09, EU:C:2012:213, paragraph 28).