Case C‑573/16

Air Berlin plc

v

Commissioners for Her Majesty’s Revenue & Customs

(Request for a preliminary ruling
from the High Court of Justice of England and Wales, Chancery Division)

(Reference for a preliminary ruling – Indirect taxes – Raising of capital – Imposition of a duty of 1.5% on the transfer into a clearance service of newly issued shares or shares intended to be listed on a stock exchange of a Member State)

Summary — Judgment of the Court (Seventh Chamber), 19 October 2017

1. Tax provisions—Harmonisation of laws—Indirect taxes on the raising of capital—Capital duty charged on capital companies—Prohibition on the levying of other taxes—Exceptions—Duties on the transfer of securities—Meaning—Transfer of legal title to shares having no effect on beneficial ownership—Not included—Transfer obligation laid down by national law for the purposes of listing shares on a stock exchange—Irrelevant

   (Council Directive 69/335, Art. 12(1)(a))

2. Tax provisions—Harmonisation of laws—Indirect taxes on the raising of capital—Levying by a Member State of stamp duty on the transfer of shares intended to be listed on a stock exchange and of newly issued shares—Not permissible—Possibility of electing not to pay stamp duty on the initial share transfer and to pay stamp duty reserve tax on each subsequent share sale—Irrelevant

   (Council Directives 69/335, Arts 10 and 11, and 2008/7, Art. 5(1)(c) and (2)(a))

1.  See the text of the decision.

   (see paras 35-37)

2.  Articles 10 and 11 of Council Directive 69/335/EEC of 17 July 1969 concerning indirect taxes on the raising of capital must be interpreted as precluding the taxation of a transfer of shares such as that at issue in the main proceedings, whereby the legal title to all the shares of a company has been transferred to a clearance service for the sole purpose of listing those shares on a stock exchange, without there being any change in the beneficial ownership of those shares.

   Article 5(1)(c) of Council Directive 2008/7/EC of 12 February 2008 concerning indirect taxes on the raising of capital must be interpreted as precluding the taxation of a transfer of shares such as that at issue in the main proceedings, whereby the legal title to shares that have been newly issued on an increase in capital has been transferred to a clearance service for the sole purpose of offering those new shares for purchase.

   The answer to the first and second questions does not differ where legislation of a Member State, such as that at issue in the main proceedings, enables an operator of a clearance service, when it receives approval from the taxation authority, to elect that no stamp duty is payable on the initial transfer of shares into the clearance service but that a stamp duty reserve tax is instead charged on each subsequent sale of shares.

   (see paras 42, 49, operative part 1-3)