Ascendi Beiras Litoral e Alta, Auto Estradas das Beiras Litoral e Alta SA v Autoridade Tributária e Aduaneira.
Date: 2014-06-12
23. In that regard, it must be recalled that, according to settled case-law of the Court, in order to determine whether a body making a reference is a ‘court or tribunal’ within the meaning of Article 267 TFEU, a question governed by EU law alone, the Court takes account of a number of factors, such as whether the body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes , whether it applies rules of law and whether it is independent (see Case C‑394/11 Belov EU:C:2013:48, paragraph 38 and the case-law cited). In addition, a national court may refer a question to the Court only if there is a case pending before it and if it is called upon to give judgment in proceedings intended to lead to a decision of a judicial nature (see, in particular, Case C‑53/03 Syfait and Others EU:C:2005:333, paragraph 29, and Belov  EU:C:2013:48, paragraph 39).
25. In addition, as an element of the system of judicial resolution of tax disputes, arbitration tribunals dealing with taxation meet the requirement of permanence.
26. As stated by the Advocate General in paragraph 37 of his Opinion, even though the composition of the trial formations of the Tribunal Arbitral Tributário is ephemeral and their activity ends once they have made their ruling, the fact remains that, as a whole, the Tribunal Arbitral Tributário, as an element of the system referred to, is permanent in nature.
27. With regard to compulsory jurisdiction, it must be recalled that this element is lacking in contractual arbitration, since the contracting parties are under no obligation, in law or in fact, to refer their disputes to arbitration and the public authorities of the Member State concerned are neither involved in the decision to opt for arbitration nor required to intervene of their own accord in the proceedings before the arbitrator (Case C‑125/04 Denuit and Cordenier  EU:C:2005:69, paragraph 13 and the case-law cited, and order in C‑555/13 Merck Canada  EU:C:2014:92, paragraph 17).
28. However, the Court has held admissible preliminary questions referred to it by an arbitration tribunal, where that tribunal had been established by law, its decisions were binding on the parties and its jurisdiction did not depend on their agreement (order in Merck Canada  EU:C:2014:92, paragraph 18 and the case-law cited).
29. As stated by the Advocate General in paragraphs 28 and 40 of his Opinion, the Tribunal Arbitral Tributário, whose decisions are binding on parties under Article 24(1) of Decree-Law No 10/2011, must be distinguished from an arbitration tribunal in the strict sense. Its jurisdiction stems directly from the provisions of Decree-Law No 10/2011 and is not, as a result, subject to the prior expression of the parties’ will to submit their dispute to arbitration (see, by analogy, Case 109/88 Danfoss  EU:C:1989:383, paragraph 7). Thus, where the taxpayer applicant submits its dispute to tax arbitration, the Tribunal Arbitral Tributário has, in accordance with Article 4(1) of Decree-Law No 10/2011, compulsory jurisdiction as regards taxation and customs matters.
32. Secondly, Article 9 of Decree-Law No 10/2011 provides that arbitrators are to be subject to the principles of impartiality and independence. Moreover, Article 8(1) of that decree-law specifies, as an impediment to the exercise of the function of arbitrator, the existence of any personal or professional relationship between the arbitrator and one of the parties to the dispute. It is thus ensured that the relevant arbitration tribunal acts as a third party in relation to the authority which adopted the impugned decision (see Case C‑517/09 RTL Belgium  EU:C:2010:821, paragraph 38 and the case-law cited, and order in Case C‑167/13 Devillers  EU:C:2013:804, paragraph 15).
38. In that regard, it must be noted that it is not for the Court, in the context of a reference for a preliminary ruling, to rule on the interpretation of provisions of national law or on the assessment of the factual context of the main proceedings, which is a task reserved exclusively to the referring court (see, to that effect, Joined Cases C‑378/07 to C‑380/07 Angelidaki and Others EU:C:2009:250, paragraph 48, and Case C‑345/09 van Delft and Others  EU:C:2010:610, paragraph 114).
45. On the contrary, the Court has held that Article 7(1) of Directive 69/335 sets out a clear and unconditional obligation, on the part of Member States, to exempt from capital duty transactions falling within the scope of that directive which, on 1 July 1984, were exempted or taxed at a rate of 0.50% or less (see Optimus — Telecomunicações  EU:C:2007:366, paragraph 30, and Case C‑372/10 Pak-Holdco  EU:C:2012:86, paragraph 28). That obligation as well as the other obligations flowing from Directive 69/335 has been binding on the Portuguese Republic since 1 January 1986, the date of that State’s accession to the European Union.
46. However, in so far as transactions such as those at issue in the main proceedings, falling under Article 4(1) of Directive 69/335 were, on 1 July 1984, subject to capital duty, at a rate higher than 0.50%, the Republic of Portugal could, in accordance with Article 7(2) of that directive, decide to continue to make transactions of that type subject to capital duty at the time of its accession to the Union, on 1 January 1986 (see, to that effect, Case C‑212/10 Logstor ROR Polska  EU:C:2011:404, paragraph 34).
49. It is apparent from the second and third recitals of Directive 85/303 that Directive 69/335 has the objective of limiting or abolishing capital duty. In the light of that objective, it is clear from the third recital that it was only by reason of the budgetary difficulties they would be faced with if capital duty were abolished that Member States which had not waived the levying of that duty could maintain such a duty (see, to that effect, Logstor ROR Polska  EU:C:2011:401, paragraph 36).
50. The reference to the date of 1 July 1984, made in the first subparagraph of Article 7(1) of Directive 69/335, cannot constitute for Member States which, at that date, made the transactions in question subject to capital duty, at a rate higher than 0.50%, an authorisation to reintroduce such a duty after waiving it, which would go against the wording of that provision and the objective of limiting or abolishing capital duty pursued by that directive. The intention of the Union legislature was in fact to abolish capital duty, the possibility of maintaining it only being an exception motivated by the fear of loss of revenue by Member States. Therefore, even if the loss of budget revenue could justify maintaining capital duty beyond 1 July 1984, within the limits set in Article 7(2) of the directive, it could not justify reintroducing such duty (see, to that effect, Logstor ROR Polska  EU:C:2011:404, paragraphs 37 to 39).