Keywords
Summary

Keywords

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1. Tax provisions ° Harmonization of laws ° Indirect taxes on the raising of capital ° Capital duty levied on capital companies ° Application to merger transactions effected by increasing the capital of the acquiring company ° Imposition within the limits laid down by the Community rules

(Council Directive 69/335, Arts 4(1)(c) and 7(1), as amended by Directives 73/80 and 85/303)

2. Preliminary rulings ° Interpretation ° Effect of interpretative judgments ratione temporis ° Retroactive effect ° Limits imposed by the Court ° Conditions ° Judgment on the interpretation of Directive 69/335 concerning indirect taxes on the raising of capital ° Conditions not fulfilled ° Significance for the Member State concerned of the financial consequences of the judgment ° Not decisive

(EC Treaty, Art. 177; Council Directive 69/335

Summary

1. Article 4 of Directive 69/335 concerning indirect taxes on the raising of capital defines objectively, and with uniform application in all Member States, the transactions which are or may be rendered subject to the harmonized capital duty by the Member States, without reference to any specific aspects of their individual domestic legislation or to the way in which national tax systems are organized. It must be interpreted as meaning that merger transactions entered into exclusively by legal persons or organizations liable to corporation tax fall within the scope of Article 4(1)(c), relating to increases in the capital of capital companies by contribution of assets of any kind, with the ensuing consequences as regards the levying and rate of capital duty payable under Article 7(1) concerning the transfer by one or more capital companies of all of their assets and liabilities to one or more capital companies which are in the process of being formed or which are already in existence.

Following its amendment by Directive 73/80, with effect from 1 January 1976, Article 7(1) authorized only a reduced rate not exceeding 0.50%, and since its further amendment by Directive 85/303, with effect from 1 January 1986, it provides for exemption from all capital duties. It therefore precludes the application of national laws maintaining at 1.20% the rate of registration duty on contributions of movable property made in the context of a merger.

2. The interpretation which, in the exercise of the jurisdiction conferred upon it by Article 177 of the Treaty, the Court of Justice gives to a rule of Community law clarifies and defines where necessary the meaning and scope of that rule as it must be or ought to have been understood and applied from the time of its coming into force. It follows that the rule as thus interpreted may, and must, be applied by the courts to legal relationships arising and established before the judgment ruling on the request for interpretation, provided that in other respects the conditions enabling an action relating to the application of that rule to be brought before the courts having jurisdiction are satisfied.

Having regard to those principles, it is only exceptionally that the Court may limit the effects of a judgment ruling on a request for interpretation; such a step may be taken only in certain specific circumstances, for instance where there is a risk of serious economic repercussions owing in particular to the large number of legal relationships entered into in good faith on the basis of rules considered to be validly in force, and where it appears that both individuals and national authorities have been prompted to adopt practices which do not comply with Community law by reason of objective, significant uncertainty regarding the implications of Community provisions, to which the conduct of other Member States or the Commission may even have contributed.

Those conditions are not fulfilled in the case of a judgment ruling on the interpretation of Directive 69/335 as regards the taxation of merger transactions between capital companies, unless the national government concerned can show that Community law could reasonably be understood as authorizing taxation of a different kind from that provided for by that directive in respect of capital duty.

Moreover, the financial consequences which might ensue for a government owing to the unlawfulness of a tax or imposition cannot in themselves justify limiting the effects of such a judgment. To limit the effects of a judgment solely on the basis of such considerations would considerably diminish the judicial protection of the rights which taxpayers have under Community fiscal legislation