Albert Reiss Beteiligungsgesellschaft mbH v Land Baden-Württemberg.
Date: 2007-06-28
29. In that regard, it should be noted that the Court may, of its own motion, on a proposal from the Advocate General or at the request of the parties, order the reopening of the oral procedure in accordance with Article 61 of the Rules of Procedure, if it considers that it lacks sufficient information or that the case should be decided on the basis of an argument which has not been discussed between the parties (Case C‑309/99 Wouters and Others  [2002] ECR I‑1577, paragraph 42, and Case C-210/03 Swedish Match  [2004] ECR I‑11893, paragraph 25).
30. In the present case, however, the Court takes the view, after hearing the Advocate General, that it has all the information necessary for it to answer the questions referred. The application for the oral procedure to be reopened must therefore be rejected.
34. In that regard, it must be recalled that a reference from a national court may be refused only if it is quite obvious that the interpretation of Community law sought bears no relation to the actual facts of the main action or to its purpose, or where the problem is hypothetical or the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, in particular, Case C‑344/04 IATA and ELFAA  [2006] ECR I‑403, paragraph 24 and the case‑law cited).
39. It is apparent from the case‑law that, in the light of the objectives pursued by Directive 69/335, the meaning of ‘tax’ for the purposes of that directive must, in principle, be broadly interpreted (see, to that effect, Case C‑426/98 Commission  v Greece  [2002] ECR I‑2793, paragraph 25, and Case C‑22/03 Optiver and Others  [2005] ECR I‑1839, paragraphs 30 and 31).
40. According to the case‑law, notarial fees must be classed as ‘tax’ for the purposes of Directive 69/335 where they are charged for a transaction covered by that directive by notaries who are employed as civil servants and are, at least in part, paid to the State to subsidise public expenditure (see, to that effect, the order of the Court in Case C‑264/00 Gründerzentrum  [2002] ECR I‑3333, paragraph 27; Case C‑165/03 Längst  [2005] ECR I‑5637, paragraph 37; and Case C‑193/04 Organon Portuguesa  [2006] ECR I‑7271, paragraph 17).
45. First, in the cases which gave rise to the judgments referred to above, namely Case C‑56/98 Modelo (‘ Modelo I ’) [1999] ECR I‑6427, paragraphs 19 and 23; Case C‑19/99 Modelo (‘ Modelo II ’) [2000] ECR I‑7213, paragraphs 19 and 23; and Längst  and Organon Portuguesa  (see, respectively, paragraphs 41 to 43 and paragraphs 11 and 17), the fees in question were also initially made by notaries who were civil servants, and then transferred in part to the State.
48. It should be recalled at the outset that Article 10 of Directive 69/335, read in the light of the last recital in the preamble to the directive, prohibits taxes with the same characteristics as a capital duty (see, in particular, Joined Cases C‑71/91 and C‑178/91 Ponente Carni and Cispadana Costruzioni [1993] ECR I‑1915, paragraph 29, and Case C‑2/94 Denkavit Internationaal and Others  [1996] ECR I‑2827, paragraph 23).
49. Article 10(c) of Directive 69/335 thus encompasses, inter alia, taxes in any form which are payable in respect of registration or any other formal requirement before the commencement of business, to which a company may be subject by reason of its legal form.
50. That prohibition is in addition to those set out in Article 10(a) and (b) of that directive, which refer to the scenarios described in Article 4 of the directive, and 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 essential 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 might also frustrate the aims of that directive (see, to that effect, Case C‑264/04 Badischer Winzerkeller  [2006] ECR I‑5275, paragraph 19, and the case‑law cited).
51. The Court inferred from that that Article 10(c) of Directive 69/335 must, in principle, be broadly interpreted as including not only procedures which are formally required before the capital company commences business, but also the formalities which are necessary for carrying on the business of that company (see, to that effect, Case C‑188/95 Fantask and Others  [1997] ECR I‑6783, paragraph 22; Case C‑347/96 Solred  [1998] ECR I‑937, paragraph 22; and Badischer Winzerkeller , paragraph 25).
52. In this regard, the Court has held many times that where a transaction carried out by a capital company, such as, for example, the increase of its company capital, the amendment of its statutes or the acquisition of immoveable property following a merger, is subject to legal formalities under national law, that formality is necessary for carrying on that company’s business (see, to that effect, Badischer Winzerkeller , paragraphs 26 and 27, and the case‑law cited).
53. Thus, the Court has, for example, held to be unlawful for the purposes of Article 10(c) of Directive 69/335 taxes on the registration of a new company ( Ponente Carni and Cispadana Costruzioni , paragraphs 30 and 31, and Fantask and Others , paragraph 22), on the authentication of the formation of a new company (the order in Gründerzentrum , paragraph 30), on the recording of an increase in share capital ( Fantask and Others , paragraph 22; Case C‑134/99 IGI  [2000] ECR I‑7717, paragraph 25; and Case C‑206/99 SONAE  [2001] ECR I‑4679, paragraph 31), on the authentication of an increase in share capital ( Modelo I , paragraph 26), and on the authentication of the payment of the amount of the share capital not yet paid up ( Solred , paragraph 23).
54. In the case in the main proceedings, as also pointed out by Advocate General Geelhoed in points 20 to 23 of his Opinion, the fees in dispute were charged for the authentication of the transfer of shares in a company (Arku GmbH), made in the form of a contribution in kind in the course of an increase in the share capital of a capital company (Reiss mbH). The authentication in question thus attests a transaction on which the increase in the capital of a capital company is dependent. Since, under German law, such share transfer transactions must be authenticated, that authentication must be regarded as a formality which is necessary for carrying on the business of the capital company in question (Reiss mbH). The authentication in question is thus a prior formal requirement to which a capital company is subject by reason of its legal form.
61. It should be pointed out, in that regard, that ‘duties paid by way of fees or dues’ are duties charged in consideration for a service provided (see, to that effect, Case C‑426/98 Commission  v Greece [2002] ECR I‑2793, paragraph 36).
62. Consequently, as stated by Advocate General Geelhoed in point 32 of his Opinion, only remuneration the amount of which is calculated on the basis of the cost of the service rendered can be qualified as ‘duties paid by way of fees or dues’ within the meaning of Article 12(1)(e) of Directive 69/335. By contrast, where the amount payable is wholly unrelated to the cost of the service in question or is calculated, not by reference to the costs of the transaction for which it constitutes the consideration, but to all the operating and capital costs incurred by the administrative body, it must be regarded as a tax falling exclusively within the prohibition laid down in Articles 10 and 11 of that directive (see, to that effect, Ponente Carni and Cispadana Costruzioni , paragraphs 41 and 42, and the order in Gründerzentrum , paragraph 31).
63. Thus, a charge, the amount of which is determined in relation to the value of the underlying economic transaction and which increases directly, without limit, in proportion to that value, cannot, by its very nature, constitute ‘duties paid by way of fees or dues’ within the meaning of Article 12(1)(e) of Directive 69/335. Even though in some cases the complexity of a service rendered by the administrative body may be linked to the value of the underlying economic transaction, the amount of such a charge will generally bear no relation to the costs actually incurred by that administrative body (see, to that effect, Modelo I , paragraph 30, and IGI , paragraph 31).