1. This reference for a preliminary ruling concerns the interpretation of Article 2(1)(b) and (c) and (2) and Article 9 of Council Directive 2008/7/EC of 12 February 2008 concerning indirect taxes on the raising of capital (OJ 2008 L 46, p. 11).
2. The reference has been made in proceedings between Drukarnia Multipress sp. z o.o. (‘Drukarnia’) and the Minister Finansów (Minister for Finance, ‘the Minister’) concerning the charging of a tax designated ‘tax on civil-law acts’ on certain restructuring operations carried out by a partnership limited by shares (‘PLS’) under Polish law. Legal context EU law
3. Directive 2008/7, in accordance with Article 16, repealed and replaced with effect from 1 January 2009 Council Directive 69/335/EEC of 17 July 1969 concerning indirect taxes on the raising of capital (OJ, English Special Edition 1969(II), p. 412), as amended by Council Directive 2006/98/EC of 20 November 2006 (OJ 2006 L 363, p. 129).
4. Recitals 2 to 6 in the preamble to Directive 2008/7 read as follows: ‘(2) The indirect taxes on the raising of capital, namely the capital duty (the duty chargeable on contributions of capital to companies and firms), the stamp duty on securities, and duty on restructuring operations, regardless of whether those operations involve an increase in capital, give rise to discrimination, double taxation and disparities which interfere with the free movement of capital. The same applies as regards other indirect taxes with the same characteristics as capital duty and the stamp duty on securities. (3) Consequently, it is in the interests of the internal market to harmonise the legislation on indirect taxes on the raising of capital in order to eliminate, as far as possible, factors which may distort conditions of competition or hinder the free movement of capital. (4) The economic effects of capital duty are detrimental to the regrouping and development of undertakings. Such effects are particularly harmful in the present economic situation in which there is a paramount need for priority to be given to stimulating investment. (5) The best solution for attaining these objectives would be to abolish capital duty. (6) However, the losses of revenue which would result from the immediate application of such a measure are unacceptable for Member States which currently apply capital duty. Those Member States should therefore have the opportunity to continue to subject to capital duty all or part of the transactions concerned, it being understood that a single rate of tax must be charged within one and the same Member State. Once a Member State has chosen not to levy capital duty on all or part of the transactions under this Directive, it should not be possible for it to reintroduce such duties.’
5. Article 2 of Directive 2008/7, ‘Capital company’, reads as follows: ‘1. For the purposes of this Directive “capital company” means: (a) any company which takes one of the forms listed in Annex I; (b) any company, firm, association or legal person the shares in whose capital or assets can be dealt in on a stock exchange; (c) any company, firm, association or legal person operating for profit, whose members have the right to dispose of their shares to third parties without prior authorisation and are only responsible for the debts of the company, firm, association or legal person to the extent of their shares. 2. For the purposes of this Directive, any other company, firm, association or legal person operating for profit shall be deemed to be a capital company.’
6. Article 4 of that directive, ‘Restructuring operations’, provides in paragraph 1(b): ‘For the purposes of this Directive, the following restructuring operations shall not be considered to be contributions of capital: … (b) the acquisition, by a capital company which is in the process of being formed or which is already in existence, of shares representing a majority of the voting rights of another capital company, provided that the consideration for the shares acquired consists at least in part of securities representing the capital of the former company. Where the majority of the voting rights is reached by means of two or more transactions, only the transaction whereby the majority of voting rights is reached and any subsequent transactions shall be regarded as restructuring operations.’
7. Article 5 of the directive, ‘Transactions not subject to indirect tax’, provides in paragraph 1(e): ‘Member States shall not subject capital companies to any form of indirect tax whatsoever in respect of the following: … (e) the restructuring operations referred to in Article 4.’
8. In accordance with Article 9 of the directive, ‘Exclusion of certain entities from the scope of application’: ‘Member States may for the purposes of levying capital duty choose not to regard as capital companies the entities referred to in Article 2(2).’
9. Article 12 of the directive, ‘Exclusion from the basis of assessment for capital duty’, provides in the first subparagraph of paragraph 2: ‘A Member State may exclude from the basis of assessment for capital duty the amount of the capital contributed by a member with unlimited liability for the obligations of a capital company as well as the share of such a member in the company’s assets.’
10. Annex I to the directive consists of a list entitled ‘List of companies referred to in Article 2(1)(a)’, including in point 21 the share company (spółka akcyjna) and limited liability company (spółka z ograniczoną odpowiedzialnością) under Polish law. Polish law
11. Article 1 of the Law on the tax on civil-law acts (Ustawa o podatku od czynności cywilnoprawnych) of 9 September 2000, in the version applicable in the main proceedings (Dz. U., 2010, No 101, item 649), (‘the PCC Law’) provides: ‘1. Tax shall be chargeable on: (1) the following civil-law acts: … (k) the founding documents of a company or partnership; (2) amendments to the contracts referred to in subparagraph 1, if they give rise to an increase in the basis of assessment for the tax on civil-law acts … … 3. In the case of the founding document of a company or partnership, the following shall be considered to be an amendment to the document: (1) in the case of a partnership: a contribution or increased contribution whose value leads to an increase in the assets of the partnership or an increase in its capital, a loan granted to the partnership by a member, additional payments or donations by a member to the partnership of property or property rights for use free of charge; …’
12. Article 1a(1) of the PCC Law provides: ‘The expressions used in this law shall mean: (1) partnership: … a partnership limited by shares [“spółka komandytowo-akcyjna”]’.
13. Under Article 2(6)(c) of the PCC Law: ‘Tax shall not be chargeable on: … (6) the founding documents of a company or partnership and amendments to them in connection with: … (c) a contribution to a capital company in return for shares in it: - of the business of a capital company or an organised part of it, - of shares in another capital company giving a majority of votes in it, or of further shares in the event that the company to which those shares are contributed already holds a majority of votes.’ The dispute in the main proceedings and the questions referred for a preliminary ruling
14. Drukarnia, intending to convert itself into a PLS and then to increase its capital by a contribution in kind made up of shares in another PLS, shares in a share company and shares in a limited liability company, applied to the Minister on 21 August 2012 for a written interpretation of provisions of the PCC Law.
15. Drukarnia submitted that a PLS was a capital company within the meaning of Article 2(1)(b) of Directive 2008/7. Consequently, by virtue of Article 4(1)(b) in conjunction with Article 5(1)(c) of that directive, those restructuring operations cannot be subject to the tax on civil-law acts.
16. By written interpretations of 20 November 2012, the Minister considered that Drukarnia’s position was incorrect and that a PLS was not a ‘capital company’ within the meaning of that directive.
17. The Minister noted that Article 2(1)(b) and (c) of Directive 2008/7 does not allow a partnership to be classified as a capital company if only some of its shares and members satisfy the conditions laid down in that provision. Thus the Member States which wished to include PLSs within the scope of Directive 2008/7 had ensured that that category of partnership appeared in the list in Annex I to that directive. The Republic of Poland had not chosen to include PLSs in the list in Annex I, principally because of their dominant partnership character, and had instead preferred to make use of the option in Article 9 of Directive 2008/7, PLSs being classified as partnerships by the PCC Law. Consequently, a PLS cannot be regarded as a capital company on the basis of Article 2(2) of Directive 2008/7 either, so that Articles 4(1)(b) and 5(1)(e) of that directive do not apply to the dispute in the main proceedings.
18. Drukarnia brought an action in the Wojewódzki Sąd Administracyjny w Krakowie (Regional Administrative Court, Cracow) for annulment of the Minister’s written interpretations of 20 November 2012, on the ground that they infringed in particular Article 2(1) of Directive 2008/7. The Minister repeated his arguments and contended that the action should be dismissed.
19. That court states that under Polish commercial law a PLS is a partnership with the object of carrying on a business under its own name, having the characteristic elements of a partnership together with features of a capital company. In particular, in a PLS at least one of the partners, the ‘general partner’, is liable without limit for the partnership’s liabilities to its creditors and at least one of the partners is not personally liable for the partnership’s liabilities. The capital of a PLS consists of the shares of the latter partners and the contributions of the general partners. While the general partners’ contributions cannot be dealt in on a stock exchange, the shares in a PLS may be dealt in there under the same rules as those applicable to the capital of share companies. In addition, the transfer by a general partner of his rights and obligations is in principle subject to the agreement of the other partners, whereas the shares in a PLS are transferable, although the transfer of registered shares may be restricted, as in the case of registered shares in share companies.
20. In those circumstances, the Wojewódzki Sąd Administracyjny w Krakowie decided to stay the proceedings and to refer the following two questions to the Court for a preliminary ruling: ‘(1) Should Article 2(1)(b) and (c) of [Directive 2008/7] be interpreted as meaning that a [PLS] should be regarded as a capital company within the meaning of those provisions if it follows from the legal nature of that partnership that only some of its capital and partners are able to meet the requirements set out in Article 2(1)(b) and (c) of the directive? (2) If the first question is answered in the negative, should Article 9 of [Directive 2008/7], which allows a Member State to choose not to recognise the entities referred to in Article 2(2) of the directive as capital companies, be interpreted to mean that that Member State is also free to choose whether or not to levy capital duty on such entities?’ Consideration of the questions referred Question 1
21. It should be recalled, as a preliminary point, that, in so far as the provisions of Article 2 of Directive 2008/7 in conjunction with Annex I to that directive, and of Article 9 of that directive, substantially repeat the content of Article 3 of Directive 69/335, as amended by Directive 2006/98, the Court’s interpretation of Article 3 of Directive 69/335 is also valid for those provisions.
22. According to settled case-law of the Court, in the interpretation of a provision of EU law, account must be taken not only of its wording but also of the context in which it occurs and the objectives pursued by the rules of which it forms part, and if appropriate of the origins of those rules (see, to that effect, judgments in Inuit Tapiriit Kanatami and Others v Parliament and Council , C‑583/11 P, EU:C:2013:625, paragraph 50; Koushkaki , C‑84/12, EU:C:2013:862, paragraph 34; and Bouman , C‑114/13, EU:C:2015:81, paragraph 31).
23. In the present case, it is appropriate to examine, in the first place, the context of Article 2(1)(b) and (c) of Directive 2008/7. It follows from Article 2(1) of that directive that the definition of ‘capital company’ is a wide one and is not tied to any specific form of company (see, to that effect, judgment in Amro Aandelen Fonds , 112/86, EU:C:1987:488, paragraph 8).
24. First, Article 2(1)(a) of Directive 2008/7, in conjunction with Annex I to that directive, refers to certain categories of capital companies under the national laws of the various Member States. Secondly, the concept of ‘capital company’ covers any company, firm, association or legal person meeting the criteria normally used to characterise capital companies, laid down in Article 2(1)(b) and (c) of that directive.
25. Consequently, the fact that, in the present case, a PLS does not appear in point 21 of Annex I to Directive 2008/7 as one of the companies under Polish law which must be regarded as capital companies on the basis of Article 2(1)(a) of that directive does not prevent it from being recognised as a capital company where it possesses the characteristics set out in Article 2(1)(b) and (c) of the directive.
26. Moreover, Article 2(2) of Directive 2008/7 deems any other company, firm, association or legal person operating for profit to be a capital company. The objective of that provision is to prevent the choice of a particular legal form from resulting in the different fiscal treatment of transactions which, from an economic point of view, are equivalent, the provision thus making it possible to cover entities which, while having the same economic function as capital companies properly so called, namely the earning of a profit by the pooling of capital in a separate set of assets, do not satisfy the criteria to be a ‘capital company’ as defined in Article 2(1) of that directive (see, to that effect, judgment in Commission v Greece , C‑178/05, EU:C:2007:317, paragraph 43 and the case-law cited).
27. While Article 9 of Directive 2008/7 leaves the Member States the option of not regarding the entities listed in Article 2(2) of that directive as capital companies for the purposes of charging capital duty, no possibility of derogation is provided for in respect of the entities referred to in Article 2(1) of the directive, which lays down, in a mandatory and uniform manner for all Member States, the companies to be regarded as capital companies within the meaning of that directive (judgment in ING. AUER , C‑251/06, EU:C:2007:658, paragraph 21).
28. Accordingly, any company which satisfies the criteria set out in Article 2(1)(b) or (c) of Directive 2008/7, regardless of its classification in the law of each Member State, is a ‘capital company’ for the purposes of that directive.
29. In the second place, it must be stated that the wording of Article 2(1)(b) and (c) of that directive contains nothing to indicate that the EU legislature intended to exclude from the concept of ‘capital company’ legal structures of a hybrid nature, such as the PLS, in which only some of the shares in the capital or assets can be dealt in on a stock exchange, or in which only some of the members have the right to dispose of their shares to third parties without prior authorisation and are responsible for the company’s debts only to the extent of their shares.
30. In particular, that provision does not lay down any threshold, either with respect to the amount of shares in the capital or assets of the company which can be dealt in on a stock exchange or with respect to the number of members of a company operating for profit who have the right to dispose of their shares to third parties without prior authorisation and are responsible for the company’s debts only to the extent of their shares, below which a company cannot be regarded as a capital company on the basis of that provision.
31. In the third place, as regards the purpose of Directive 2008/7, it must be observed, as may be seen from recitals 2 to 4 in its preamble, that it aims to harmonise the legislation on indirect taxes on the raising of capital in order to eliminate, as far as possible, factors which may distort conditions of competition or hinder the free movement of capital, and thus to ensure the smooth functioning of the internal market.
32. Full realisation of the objectives pursued by the directive presupposes that the raising of capital which may be characterised as a capital company in accordance with the criteria in Article 2(1)(b) and (c) of that directive is burdened by indirect taxes only on the strict conditions laid down by the EU legislature.
33. However, the restrictive interpretation of Article 2(1)(b) and (c) of Directive 2008/7 proposed by the Minister in the main proceedings would allow the Member States, contrary to the purpose of the directive, to subject the raising of capital meeting those criteria to indirect taxes outside the conditions defined in the context of the harmonisation effected by the directive.
34. In the fourth place, the origins of Directive 2008/7 also militate in favour of an interpretation of the term ‘capital company’ which makes it possible to cover the greatest possible number of entities that may raise capital within the internal market. Recitals 5 and 6 in the preamble to that directive state that the best solution for attaining the objectives pursued by the directive would be to abolish capital duty. It is only because of the budgetary difficulties they would face if capital duty were abolished that the Member States which have not abolished that duty can maintain it. Moreover, a Member State which has chosen not to levy capital duty does not have the option of reintroducing it.
35. In the fifth place, Article 12(2) of Directive 2008/7 provides that a Member State may exclude from the basis of assessment for capital duty the amount of the capital contributed by a member with unlimited liability for the obligations of a capital company as well as the share of such a member in the company’s assets. As the Advocate General observes in point 46 of his Opinion, the fact that that provision refers to the specific situation of a PLS supports the conclusion that those partnerships, and any similar hybrid legal structure, fall within the scope of the directive.
36. Having regard to all the above considerations, the answer to the first question is that Article 2(1)(b) and (c) of Directive 2008/7 must be interpreted as meaning that a PLS under Polish law must be regarded as a capital company within the meaning of that provision even if only some of its capital and members are able to satisfy the conditions laid down by that provision. Question 2
37. As the second question was submitted by the referring court only in the event of the first question being answered in the negative, there is no need to answer it. Costs
38. Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.