Optimus - Telecomunicações SA v Fazenda Pública.
Date: 2007-06-21
25. In order to answer that question from the referring court, account must be taken, when considering the interpretation and application of Directive 69/335, of the particular situation of a State such as the Portuguese Republic which became a member of the European Communities with effect from 1 January 1986.
26. It follows, in the first place, from that fact that Directive 69/335 was not applicable in that State before that date. Any measures relating to the taxation or exemption from taxation of transactions falling within the definition of the raising of capital were adopted within the Portuguese legal system, before the date referred to above, solely on the basis of national law.
27. The second consequence of that fact is that, for the purposes of the interpretation and application of Directive 69/335 as it relates to the Portuguese Republic, a historical interpretation of the objectives of that directive cannot affect the interpretation of the directive as it applied after the accession of that State. To that extent, the budgetary reasons which prevented certain Member States, before 1 January 1986, from agreeing to the elimination of capital duty cannot be invoked in the case of the Portuguese Republic.
28. It should be added that the date on which the accession of the Portuguese Republic to the Communities took effect, namely 1 January 1986, coincides with the time‑limit set for transposition of the substantial amendments made to Directive 69/335 by Directive 85/303. Moreover, there is no provision in the Act concerning the conditions of accession of the Kingdom of Spain and of the Portuguese Republic and the adjustments to the Treaties (OJ 1985 L 302, p. 23), or in any other document, which fixes, for the latter State, a time-limit for transposition which differs from that in Directive 85/303. Consequently, the only version of Directive 69/335 which applies to the Portuguese Republic is that established by Directive 85/303.
29. That finding is corroborated by the fact that Article 4(2) and the third subparagraph of Article 7(1) of Directive 69/335 contain derogations in favour of the Hellenic Republic as to the application of that directive. However, no such derogations are provided for the Portuguese Republic.
30. The first subparagraph of 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 which, on 1 July 1984, were exempted or taxed at a rate of 0.50% or less. That obligation, the meaning of which is unambiguous, was also binding on the Portuguese Republic as from 1 January 1986.
31. That interpretation corresponds not only to what is clearly the letter of Article 7(1), but also to the spirit and primary objective of Directive 69/335, which, as the Advocate General at point 59 of her Opinion justifiably observes, was to minimise the effects of capital duty on the free movement of capital as far as possible (see, to that effect, Case C‑494/03 Senior Engineering Investments  [2006] ECR I‑525, paragraph 43).
32. Lastly, it must be observed that the date of 1 July 1984, which is taken as the relevant date under Article 7(1) of Directive 69/335, is equally applicable to the Portuguese Republic. In the case of accession, a reference to a date laid down in Community law, in the absence of a provision to the contrary in the Act of Accession or some other Community document, applies equally to the State which is acceding, even if that date is earlier than the date of its accession. As regards the Portuguese Republic, no provision which differs on that point is to be found either in the Act of Accession or in any other document. Such a provision would however have been possible, as is shown by the derogating provisions in favour of the Hellenic Republic.
33. It follows from the foregoing that, in the case of a State such as the Portuguese Republic, which acceded to the European Communities with effect from 1 January 1986, in the absence of derogating provisions in the Act of Accession of that State or in another Community document, Article 7(1) of Directive 69/335 must be interpreted to mean that the mandatory exemption for which it provides applies to all the transactions falling within the scope of that directive which, on 1 July 1984, were exempted, in that State, from capital duty or which were subject to that duty at a reduced rate of 0.50% or less.
The second question