Firma ING. AUER - Die Bausoftware GmbH v Finanzamt Freistadt Rohrbach Urfahr.
Date: 2007-11-08
19. Moreover, it is settled case-law that, in proceedings under Article 234 EC, which is based on a clear separation of functions between the national courts and the Court of Justice, any assessment of the facts in the case is a matter for the national court (Case 36/79 Denkavit Futtermittel  [1979] ECR 3439, paragraph 12, and Case C-282/00 RAR  [2003] ECR I-4741, paragraph 46). The Court’s examination is therefore based on the national court’s finding that the facts set out in paragraphs 11 to 14 of this judgment constitute a transfer of the effective centre of management from one Member State to another.
21. Article 3(1) of Directive 69/335, the text of which is reproduced in paragraph 4 of this judgment, lays down, in a mandatory and uniform manner for all Member States, the companies to be regarded as capital companies for the purposes of Directive 69/335.
33. In addition, the Court has already held that to favour the criterion of being subject to duty in the Member State of origin as opposed to the criterion of classification as a capital company provided for in Article 4(1)(g) of Directive 69/335 is contrary to the requirements of the directive inasmuch as it would allow capital duty to be charged where the Directive does not so envisage (see, to that effect, Case C-178/05 Commission  v Greece  [2007] ECR I-0000, paragraphs 26 to 30).
34. Furthermore, it is clear from the Court’s case-law that although the Member States are free, under Article 7(2) of Directive 69/335, to exempt contributions to companies from capital duty, such an exemption cannot lead to the consequence that another Member State is entitled to tax those contributions (see, to that effect, Case C-494/03 Senior Engineering Investments  [2006] ECR I‑525, paragraph 43).
35. Therefore, the fact that a Member State has exercised the option provided for in Article 7(2) of Directive 69/335 by abolishing capital duty does not mean that, if the effective centre of management of a capital company is transferred from that Member State to another Member State, the latter State may automatically make that transaction subject to capital duty.
38. In that regard, even though, formally, the national court has limited its questions to the interpretation of Article 4(1)(g) and (3)(b), and of Article 7(2), of Directive 69/335, such a situation does not prevent the Court from providing the national court with all the elements of interpretation of Community law which may be of assistance in adjudicating on the case before it, whether or not that court has specifically referred to them in the questions (see, to that effect, Case C‑241/89 SARPP  [1990] ECR I-4695, paragraph 8; Case C‑87/97 Consorzio per la tutela del formaggio Gorgonzola  [1999] ECR I‑1301, paragraph 16; and C-392/05 Alevizos [2007] ECR I-0000, paragraph 64).
41. However, the Court has held that the application of Community legislation cannot be extended to cover abusive practices by economic operators, that is to say transactions carried out not in the context of normal commercial operations, but solely for the purpose of wrongfully obtaining advantages provided for by Community law (see Case C-255/02 Halifax and Others  [2006] ECR I-1609, paragraph 69).
44. Nevertheless, the formation of a company in a Member State under wholly artificial arrangements which do not reflect economic reality, with the aim of avoiding the tax normally payable, goes beyond the protection which Directive 69/335 must afford to the companies to which it applies.