Eycke Braun v Land Baden-Württemberg.
Date: 2014-07-03
22. Admittedly, it follows from the Court’s consistent case-law that the Court may refuse to rule on a question referred for a preliminary ruling from a national court where it is quite obvious, in particular, that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose (see, to that effect, Rosenbladt , C‑45/09, EU:C:2010:601, paragraph 33 and the case‑law cited, and MA and Others , C‑648/11, EU:C:2013:367, paragraph 37).
25. It must be recalled at the outset that Article 10 of Directive 69/335, read in conjunction with the eighth recital in the preamble to that directive, prohibits taxes with the same characteristics as a capital duty (see, inter alia, Judgment in Ponente Carni and Cispadana Costruzioni , C‑71/91 and C‑178/91, EU:C:1993:140, paragraph 29; Denkavit International and Others , C‑2/94, EU:C:1996:229, paragraph 23; and Albert Reiss Beteiligungsgesellschaft , C‑466/03, EU:C:2007:385, paragraph 48).
26. 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 ( Albert Reiss Beteiligungsgesellschaft , EU:C:2007:385, paragraph 49).
27. In this connection, the Court has previously held, in cases relating to legislation applicable in the Land  Baden-Württemberg, that 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 public authority employing the notaries as civil servants and used to finance the public obligations of that authority (see, to that effect, the order in Gründerzentrum , C‑264/00, EU:C:2002:201, paragraphs 27 and 28; Längst , C‑165/03, EU:C:2005:412, paragraphs 37 and 41; and Albert Reiss Beteiligungsgesellschaft , EU:C:2007:385, paragraph 40).
28. As regards the issue of whether notarial fees, such as those in question in the main proceedings, are charged ‘in respect of registration or any other formality required before the commencement of business to which a company ... may be subject by reason of its legal form’ within the meaning of Article 10(c) of Directive 69/335, it is apparent from the Court’s consistent case-law that that provision must 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 Albert Reiss Beteiligungsgesellschaft , EU:C:2007:385, paragraph 51 and the case-law cited).
29. In this regard, the Court has many times held 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 ( Albert Reiss Beteiligungsgesellschaft , EU:C:2007:385, paragraph 52; see also, to that effect, Commission  v Greece , C‑426/98, EU:C:2002:180, paragraphs 12 and 30; and Badischer Winzerkeller , C‑264/04, EU:C:2006:402, paragraphs 26 to 29).
30. In the case in the main proceedings, the notarial fees were charged on the drawing up of notarial acts recording various transactions converting capital companies into a different type of capital company. Since, under the Land  Baden‑Württemberg’s legislation, such a conversion must be made by notarial act, that obligation must be regarded as a formality which is necessary for carrying on the business of the capital company thus converted (see, by analogy, Albert Reiss Beteiligungsgesellschaft , EU:C:2007:385, paragraph 54). The drawing up of such notarial acts is thus a prior formality to which a capital company is subject by reason of its legal form, within the meaning of Article 10(c) of Directive 69/335.