C-112/86
ECLI:EU:C:1987:338
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OPINION OF MR DARMON — CASE 112/86
OPINION O F MR ADVOCATE GENERAL D A R M O N delivered on 7 July 1 9 8 7 *
Mr President, the raising of share capital and that Amro Members of the Court, was a 'fund', which did not have legal personality. However, Amro raised the question whether those provisions were compatible with Article 3 of the Directive. The Gerechtshof found that such a fund did riot fall within the scope of Article 3 (1) of 1. The present request for a preliminary the Directive. Article 3 (1) defines capital ruling seeks an interpretation of Article companies by reference to types of 3 (2) in relation to the scope rattorte companies existing in certain Member States personae of Council Directive 69/335/EEC and by specifying the characteristics which of 17 July 1969 concerning indirect taxes on 'companies, firms, associations or legal the raising of capital ' (hereinafter referred persons' must have to come within the defi- to as 'the Directive'). nition. The Gerechtshof adds that Amro may be regarded as a maatschap or company constituted under Netherlands civil law but such a finding is not sufficient to say whether it may be deemed to be a 2. The aim of the Directive is to abolish 'company' within the meaning of Article stamp duty on securities and all other 3 (2) of the Directive. Article 3 (2) is indirect taxes other than capital duty on the worded as follows: raising of capital in order to eliminate 'discrimination, double taxation and disparities which interfere with the free movement of capital' 2 as a result of the application of the provisions of national law. According to Article 1 of the Directive 'For the purposes of the application of this capital duty is in principle chargeable 'on Directive, any other company, firm, asso- contributions of capital to capital ciation or legal person operating for profit companies'. shall be deemed to be a capital company. However, a Member State shall have the right not to consider it as such for the purpose of charging capital duty.'
3. In the main proceedings the Gerechtshof considered that, under the terms of the Netherlands Law 3 adopted to implement the Directive, the transactions carried out by Amro Aandelen Fonds (hereinafter 4. The Gerechtshof cites the Directive's referred to as 'Amro') had to be regarded as objective of harmonization and states that its question reflects the need to lay down an * Translated from the French. independent definition of 'company' for the 1 — Official Journal, English Special Edition 1969 (II), p. 412. purpose of the application of the Directive. I 2 — Second recital in the preamble to the Directive. do not however think that that course can 3 — 'Wet op belastingen van rechtsverkeer' of 24 December 1970, Staatsblad 611. be followed.
AMRO AANDELEN FONDS v INSPECTEUR DER REGISTRATIE EN SUCCESSIE
5. The main objective of the Directive is to There could be no better indication that the harmonize the structure and rates 4 of requirement of harmonization did not capital duty 'in accordance with the extend to the legal form of the bodies provisions of Articles 2 to 9'. 5As the Court concerned. held in the Felicitas judgment, 6the concept of 'nominal amount' within the meaning of Article 5 (2) of the Directive 'is contained in a provision of Community law which does not refer to the law of the Member States in order to determine its meaning and 6. If one considers the fundamental scope'. 7 The Court therefore gave a objective of the Directive, it is to harmonize Community-law interpretation of the a tax and, more particularly, to define the concept. On the other hand the provisions chargeable event (Article 4), the taxable of Article 3 refer to national law. In the basis (Articles 5 and 6), the applicable rates same case the Court noted (Article 7) and exemptions (Articles 8 and 9). As regards the capital companies liable to the duty, it was thus not a question of harmonizing their legal structure but solely of covering as widely as possible all bodies 'the diversity of the legal structures of the likely to engage in the taxable transactions. companies, firms, associations or legal That seems to me confirmed both by the persons which may be deemed to be capital structure of Article 3 as a whole and the companies by virtue of Article 3 (2) of the objective of Article 3 (2). Directive',
and held that it could not be inferred from 7. A certain progression may be noted in those various classifications that the concept the drafting of Article 3. Clearly, first of all, 'nominal amount' could be applied auto- Article 3 (1) (a) includes in the concept of matically to each type of grouping referred capital companies which are liable to the to in Article 3 (2) but that it was necessary duty the most traditional forms of companies limited by shares in the Member States. Article 3 (1) (b) and (c) show even more clearly the Community legislature's wish to cover other forms of joint capital 'to consider whether the legal structure of (companies, firms and associations or legal each type of company, firm, association or persons) either when the shares can be dealt legal person, as disclosed by the relevant in on a stock exchange or when the shares national rules and the provisions of the to which the risk attaches are freely trans- documents of constitution, make it possible ferable and to impose capital duty on them to conclude that there is a nominal independently of any specific company amount'. 8 status. Those criteria are among the most common for defining capital companies. 4 — Seventh recital in the preamble to the Directive. Article 3 (1) thus covers all amalgamations 5 — Article 1 of the Directive. of capital which, having regard to certain 6 — Judgment of 15 July 1982 in Case 270/81 Felicitai v forms or characteristics, are in the nature of Finanzamt für Verkehrssteuern[1982] ECR 2771. capital companies as usually defined. But it 7 — Case 270/81, paragraph 14. 8 — Case 270/81, paragraph 18. is already clear that the concept is a broad
OPINION OF MR DARMON — CASE 112/86
one which is not tied to the form of the capital company but may have the same company alone. economic function as such a company in so far as capital is raised for the purpose of profit. In such cases Member States have a discretion whether to deem the entity to be a capital company which is something that the majority of them have refrained from doing in respect of investment funds. However, as the Netherlands Government has rightly said, every Member State may 8. Article 3 (2) extends that logical determine whether or not to grant approach. All raising of capital carried out exemption on the basis of the particularities by 'any other company, firm, association or of its own national law. No explanation has legal person operating for profit' is thereby been given of the reasons which led the treated in the same way in law as a capital Netherlands legislature to subject these company. In comparison with Article funds to capital duty but the Netherlands 3 (1) (b) and above all Article 3 (1) (c) the Government was under no obligation to aforementioned usual criteria have been give an explanation since assimilation is the discarded. In answer to a question from the rule. Court the Commission stated that Article 3 (2) constitutes a real 'safeguard clause' for Member States enabling them, in the context of the charging of capital duty, to avoid tax distortions which might otherwise arise from the legal form adopted for the raising of capital. I think that without neces- sarily adopting the proposed wording it is 10. It is thus for the national court to possible to agree with that analysis, determine in each case whether a particular especially in view of the second sentence of entity comes within the scope of Article Article 3 (2) which authorizes Member 3 (2). All that remains is to define the States not to apply that deeming provision. criteria which it should adopt for that It follows from the discretion which the purpose. In my opinion, in view of the Member States thus enjoy that the decision extremely wide wording of Article 3 (2) its whether or not they levy capital duty objective is in principle not to allow any depends upon considerations of national collective action likely to have the same law. economic role as that of a capital company stricto sensu to escape liability to duty. All amalgamations of assets or funds the effect of which is to create a separate fund put together for the purpose of profit are to be treated as capital companies. I am thus proposing a functional criterion for the interpretation of Article 3 (2). The reference to any other 'company, firm, asso- 9. The objective of Article 3 is then to ciation or legal person operating for profit' determine what entities are compulsorily necessarily suggests the creation of an inde- subject to such duty but not to harmonize pendent common fund for the purpose of their legal forms. The entities liable under obtaining an economic benefit. Article 3 (2) Article 3 (2) are those which it is not thus appears to cover any body of such kind possible one way or another to define as a whatever its legal form.
AMRO AANDELEN FONDS v INSPECTEUR DER REGISTRATIE EN SUCCESSIE
11. That does not mean, however, that the do not think it is possible to confine the raising of capital by informal methods is application of Article 3 (2) to strictly legal covered. It must be possible to infer a classifications. It was difficult for die common intent to act from the terms on Community legislature to avoid referring to which the capiul is raised. The various legal specific legal entities in the various Member forms referred to in Article 3 (2) do not Sutes. However, as both the Netherlands correspond to any precise classification. The Government and the Commission suggested, terms employed are generic and are a wide interpreution must be given to the intended to cover the largest number of terms employed which should be given their forms of raising capiul for the purpose of usual rather than technical meaning. Article profit. Thus in my opinion it may include a 3 (2) makes it possible to avoid the commercial company or one of civil law. directive's object of fiscal harmonization Although a company usually has legal being compromised by reason of the choices personality that is not necessarily the case as offered to those concerned by the various is illustrated by the example of the legal forms of capiul raising provided for maatschap under Netherlands law. 9 The by the national laws. same is true of associations. That is why I
12. I therefore propose that the following answer be given to the Gerechtshof, Amsterdam :
'The national court should apply the provisions of the first sentence of Article 3 (2) of Council Directive 69/335 of 17 July 1969 if it is found that a capital- raising enterprise, no matter in what legal form, which under national law is subject to capital duty, is operating for profit within the meaning of that provision by setting up an independent joint fund.'
9 — Asser-Van der Grinten: Handleidingtot de beoeknint van het Nederlands burgerlijk recht, 6th Ed. 1986, Vol. II. 2, 'De Rechtspersoon', pp. 162 and 163.