Camera di Commercio, Industria, Artigianato e Agricoltura (CCIAA) di Cosenza v Grillo Star Srl.
Date: 2012-04-19
20. On this point, it must be noted 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, which is a question governed by European Union 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‑196/09 Miles and Others  [2011] ECR I‑5105, paragraph 37 and the case‑law cited).
21. 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 (order of 24 March 2011 in Case C‑344/09 Bengtsson , paragraph 18 and the case‑law cited).
28. It should be recalled that the Court has already had occasion to rule that Article 12 of Directive 69/335, the wording of which is substantially the same as that of Article 6 of Directive 2008/7, is an exception to the prohibition in principle of taxes with the same characteristics as capital duty in Article 10 of Directive 69/335, itself substantially reproduced in Article 5(1) of Directive 2008/7 (see, to that effect, inter alia, Fantask and Others , paragraph 20).
31. That 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 Directive 2008/7 (see, to that effect, Case C‑466/03 Albert Reiss Beteiligungsgesellschaft  [2007] ECR I‑5357, paragraph 50 and the case‑law cited).
32. Article 5(1)(c) of Directive 2008/7 must in principle be interpreted broadly as including not only procedures which are formally required before a capital company commences business but also the formalities which are necessary for carrying on the business of the company (see, to that effect, Albert Reiss Beteiligungsgesellschaft , paragraph 51 and the case‑law cited).
33. However, the Court’s case‑law shows that that article does not prohibit a tax which is payable annually on account of the registration of an undertaking with a chamber of commerce and industry, in so far as the event which gives rise to that tax is not the registration of the company or the legal person which owns an undertaking but the registration of the undertaking itself, the tax is unrelated to the legal form of the entity which owns the undertaking, and it is not therefore linked to formalities to which capital companies may be subject by reason of their legal form (see, to that effect, Case C‑2/94 Denkavit Internationaal and Others  [1996] ECR I‑2827, paragraphs 24 to 26).
35. Such a duty, as Grillo Star confirmed at the hearing, is unrelated to the legal form of the entity which owns the undertaking, as it affects both undertakings which take the form of capital companies within the meaning of Article 2 of Directive 2008/7 and undertakings which take another legal form, in particular those owned or operated individually by natural persons (see, by analogy, Denkavit Internationaal and Others , paragraph 25).
38. The circumstance mentioned by the referring court that registration of capital companies in the register of undertakings has constituent effect for capital companies as defined in the national law concerned, unlike other undertakings, cannot call into question the conclusion in the preceding paragraph. Even if registration in that register, and consequently the payment of the annual duty relating to registration, is a condition of the legal existence of a capital company, that factor cannot in itself alter the event giving rise to the annual duty, as identified in paragraph 34 above, by transforming it into a duty payable by virtue of the registration of the capital company which owns the undertaking (see, by analogy, Denkavit Internationaal and Others , paragraph 28). Furthermore, it is common ground that the failure of a capital company to pay that duty does not bring about its deletion from the register of undertakings.
39. Also immaterial is the fact, relied on by the CCIAA di Cosenza, that an annual duty such as that at issue in the main proceedings has to be paid by a capital company, such as Grillo Star, even for the period during which it does not carry on any actual economic activity. In accordance with the national law at issue in the main proceedings, the obligation for capital companies to pay the annual duty is justified by the presumption that every capital company in principle owns an undertaking. The Court has accepted, first, that the definition of an undertaking in a field such as that covered by Directive 2008/7 is within the competence of the national legislature (see, to that effect, Denkavit Internationaal and Others , paragraph 31) and, secondly, that that presumption does not affect the finding that the event which gives rise to a charge such as the annual duty consists, as stated in paragraph 34 above, in the registration of the undertaking itself, regardless of its legal form (see, to that effect, Denkavit Internationaal and Others , paragraph 29).
40. Moreover, according to the documents before the Court, a company such as Grillo Star, which at least carried out operations preparatory to conducting a hotel business, in particular by acquiring land, cannot in any event be equated to a ‘shell’ company as described in paragraph 29 of Denkavit Internationaal and Others , that is, a company with no assets and thus no longer carrying on any activity.