Denkavit International BV, Galveston BV, Heklicht Scheepvaartbelangen BV, C. Roeleveld Beheer BV and Others, R. J. Schippefelt, Sigarenhandel Ben Sterk vof and J. H. van Werkhoven Holding Maarssen BV v Kamer van Koophandel en Fabrieken voor Midden-Gelderland, Kamer van Koophandel en Fabrieken voor 's-Gravenhage, Kamer van Koophandel en Fabrieken voor Amsterdam and Kamer van Koophandel en Fabrieken voor Utrecht en Omstreken.
Date: 1996-06-11
16 As its preamble shows, Directive 69/335 is intended to promote the free movement of capital, which is regarded as essential for the creation of an economic union whose characteristics are similar to those of a domestic market. As regards taxes on the raising of capital, the pursuit of such an objective presupposes the abolition of indirect taxes already in force in Member States and their replacement by a tax levied only once throughout the common market and at the same rate in all Member States.
17 Directive 69/335 therefore provides for capital which has been raised to be subject to a capital duty, which, as stated in the sixth and seventh recitals in the preamble to the directive, should be harmonized with regard both to its structures and to its rates, so as not to interfere with the movement of capital (Case 161/78 Conradsen v Ministeriet for Skatter og Afgifter [1979] ECR 2221, paragraph 11). That capital duty is governed by Articles 2 to 9 of the directive.
21 Article 12(1) of Directive 69/335 sets out an exhaustive list of taxes and duties other than capital duty which, in derogation from Articles 10 and 11, may affect capital companies in connection with the transactions referred to in Articles 10 and 11 (see Case 36/86 Ministeriet for Skatter og Afgifter v Dansk Sparinvest [1988] ECR 409, paragraph 9). Article 12 refers in particular, in paragraph (1)(e), to "duties paid by way of fees or dues". Article 12(2) prohibits certain forms of discrimination concerning the taxes and duties referred to in Article 12(1).
Question 1
23 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 in particular indirect taxes with the same characteristics as the capital duty. It thus envisages, inter alia, taxes in any form which are payable in respect of the formation of a capital company or an increase in its capital [Article 10(a)], or 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 [Article 10(c)]. As the Advocate General has pointed out in paragraph 44 of his Opinion, that latter prohibition 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 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 would similarly risk frustrating the aims of the directive.
24 In this case, as the national court points out, the event which gives rise to the tax at issue consists, in Netherlands law, not in the registration of the company or the legal person which owns an undertaking but in the registration of the undertaking itself. What is concerned is a levy which affects, on the basis of their capital employed, all entities which, outside certain sectors, engage in trading and pursue as one of their objects the making of profits.
25 Such a levy is unrelated to the legal form of the entity which owns the undertaking in respect of which the levy is due. It may just as well be a natural person as a legal person, or a partnership as a capital company. Conversely, a company which does not own any undertaking is not subject to the levy, and a company which does not own an undertaking within the geographical area of the Chamber of Trade and Industry in which it has its registered office is not required to make payment to that Chamber.
26 The levy in question cannot therefore be linked to formalities to which capital companies may be made subject by reason of their legal form. Thus, an undertaking whose owner adopts the form of a capital company in the course of a year is not required to pay it a second time. Moreover, if in the following year that new legal person does not pay the levy, it does not thereby lose the benefit of its registration as a company.
28 That interpretation is not called into question by the fact that, under the Netherlands legislation, the registration of an undertaking with a Chamber of Trade and Industry also serves as registration of the legal person which owns the undertaking, whenever the registered office of that legal person is situated within the geographical area of the same Chamber. That provision, which was, moreover, introduced merely in order to implement Directive 68/151, cannot in itself alter the event giving rise to the tax in question and transform it into one due by virtue of the registration of the legal person which owns the undertaking, especially since it is not accompanied by any increase in the levy.
29 Nor is that conclusion affected by the fact, cited by the applicants in the main proceedings and not denied by the Netherlands Government, that every capital company is presumed to own an undertaking for the purposes of the relevant Netherlands legislation. In the first place, that presumption does not extend to "shell" companies, or, in other words, those which do not have any assets and thus no longer carry on any activity. Secondly, the applicants in the main proceedings do not deny that any company formation in principle envisages the operation of an undertaking but deduce from the correspondence between, on the one hand, the formation of a company and, on the other, the operation of an undertaking, that the levy at issue must be regarded as being due by virtue of the company registration itself. The fact that every capital company in principle owns an undertaking cannot alter the event giving rise to the tax, which, on that hypothesis also, consists in the registration of the undertaking itself.
31 In those two judgments, the Court held that a mere financial holding in other undertakings did not constitute an economic activity within the meaning of the Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonization of the laws of the Member States relating to turnover taxes ° Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1; hereinafter "the Sixth Directive"). It added, however, that that did not apply where such a holding was accompanied by direct or indirect involvement in the management of the companies in question, without prejudice to the holder' s rights in his capacity as a shareholder or a member of the company. In any event, the interpretation adopted by the Court concerns only the Sixth Directive. It cannot, in particular, bind the Member States in an area in which Community law does not contain any specific provision intended to exclude or limit their competence. As the defendants in the main proceedings and the Commission pointed out at the hearing, the definition of an "undertaking" for the purposes of the legislation at issue is a matter for the Netherlands legislature.