C-249/89

2. The facts are very simple. Trave Schiffahrts-Gesellschaft mbH & Co. KG 'according to the principles on which (hereinafter referred to as 'Trave'), which harmonized capital duty is based, such duty was created on 27 June 1975, received from should be charged only on transactions its members loans totalling DM 131 million. which constitute in law the raising of capital As regards the years 1977 to 1983, the loans and only in so far as they contribute were granted free of interest. By a notice of to increasing the company's economic 7 December 1984 the Finanzamt (Finance 2 potential'. Office) Kiel-Nord subjected the making available of those loans to capital duty amounting to DM 361 335. Trave contested that charge before the competent German courts. 6. In my view, it is indisputable that the granting of an interest-free loan by a member is a service which contributes to 'increasing the company's economic potential' in so far as it provides it with 3. The case came before the Bundesfi­ finance for which it does not have to bear nanzhof which has referred for a the cost, which, depending on the state of preliminary ruling a question essentially the finance market, may be quite a seeking to establish whether, firstly, an considerable advantage. However, the interest-free loan granted to a heavily over- Bundesfinanzhof inquires whether this is indebted capital company by one of its also the case where a heavily indebted members can be charged capital duty and, company has a negative asset position. It secondly, how the capital duty is to be calculated. 2 — Judgment in Case 27Û/81 Felicitas Rickmers-Linie A'G 6 Co. v Finanzamt fur I'erkehrsteucni [1982] I'-CR 2771, sec also the ludgment in Case 36/86 Minis * Original language French teriet for Skatler og Afgifter \ Investeringsforeningen Dansk: 1 — OJ , English Special Edition 1969 ( II ), p 412 Spannvest 19881 F.CR 409, paragraphs 13 and 14

7. I do not consider it necessary to follow that school of thought. As I explained in my Opinion in Case C-15/89 Deltakabel BV, the reduction of a deficit by the provision of 10. The grant of an interest-free loan may a service, even if only a partial reduction, therefore be subjected to the levying of may increase the value of the company's capital duty. shares, even where its asset position is markedly negative and continues to be so after the provision of the service, since such a reduction increases the undertaking's ability to become viable again and reduces the additional efforts needed to achieve a 11. However, the Bundesfinanzhof goes on financial balance. to inquire as to the way in which the duty is to be calculated. According to Article 5(l)(d) of the Directive, 'in the case of an increase in the assets, as referred to in Article 4(2)(b)', the duty is to be charged 'on the actual value of the services provided, 8. The view held by some of those German after deduction of the liabilities assumed commentators stems from a confusion and the expenses borne by the company as a between the terms net assets and company result of the provision of such services'. In assets. As the Court held in its recent the specific case of the grant of an judgment in Siegen, interest-free loan, the value of the service is, in my view, the saving of interest made by the company. The rate of interest in force on the corporate finance market at the time when the loan is granted is undoubtedly to be taken into account since it determines the 'A company's assets include all the property sum which the recipient company would which the shareholders have contributed, have had to pay if it had been obliged to obtain finance on the market. 3 — Judgment of 12 April 1972, II 37/63, BFHE 106, 123, BStBl. II 1972, 714; judgment of 31 January 1979, II R 46/77, BFHE 127, 227, BStBl. II 1979, 382; 4 — Judgment of 28 March 1990 in Case C-38/88 Waidnth judgment of 11 July 1984, II R 87/82, BFHE 141, 569, Siegen Werkzeugmaschinen GmbH v Finanzamt Hagen BStBl. II 1984, 840. [1990] ECR I-1447.