Felicitas Rickmers-Linie KG & Co. v Finanzamt für Verkehrsteuern, Hambourg.

• Jurisdiction: European Union
• Date: 15 July 1982
• Court: Court of Justice (European Union)

Judgment of the Court (Third Chamber) of 15 July 1982. - Felicitas Rickmers-Linie KG & Co. v Finanzamt für Verkehrsteuern, à Hambourg. - Reference for a preliminary ruling: Finanzgericht Hamburg - Germany. - Capital duties on the raising of capital - Nominal amount of company shares. - Case 270/81.

European Court reports 1982 Page 02771
Spanish special edition Page 00849

SummaryPartiesSubject of the caseGroundsDecision on costsOperative part

Keywords

1 . TAX PROVISIONS - HARMONIZATION OF LAWS - INDIRECT TAXES ON THE RAISING OF CAPITAL - DUTY ON CONTRIBUTIONS OF CAPITAL TO CAPITAL COMPANIES - BASIS OF ASSESSMENT - REFERENCE TO THE NOMINAL AMOUNT OF THE SHARES IN THE COMPANY - CONCEPT OF ' ' NOMINAL AMOUNT ' ' - COMMUNITY CONCEPT

( COUNCIL DIRECTIVE 69/335 , ART . 5 ( 2 ))

2 . TAX PROVISIONS - HARMONIZATION OF LAWS - INDIRECT TAXES ON THE RAISING OF CAPITAL - DUTY ON CONTRIBUTIONS OF CAPITAL TO CAPITAL COMPANIES - BASIS OF ASSESSMENT - REFERENCE TO THE NOMINAL AMOUNT OF THE SHARES IN THE COMPANY - CONDITIONS

( COUNCIL DIRECTIVE 69/335 , ART . 5 ( 2 ))

3 . MEASURES ADOPTED BY THE INSTITUTIONS - DIRECTIVES - EFFECT - CORRECT IMPLEMENTATION BY THE MEMBER STATES - EFFECTS ON INDIVIDUALS OF NATIONAL IMPLEMENTING MEASURES

( EEC TREATY , ART . 189 )

Summary

1 . THE CONCEPT OF ' ' NOMINAL AMOUNT ' ' WITHIN THE MEANING OF ARTICLE 5 ( 2 ) OF DIRECTIVE 69/335 CONCERNING INDIRECT TAXES ON THE RAISING OF CAPITAL 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 SCOPE . THE HARMONIZATION OF TAXES SUCH AS CAPITAL DUTY ON THE RAISING OF CAPITAL , NOT ONLY IN RELATION TO THE RATES BUT ALSO TO THE STRUCTURE THEREOF , IMPLIES THAT THE BASIS OF ASSESSMENT IS DETERMINED IN EACH MEMBER STATE ON THE BASIS OF OBJECTIVE CRITERIA , HAVING A UNIFORM SCOPE WITHIN THE COMMUNITY AND FREE FROM THE INFLUENCE OF NATIONAL LAWS . IT FOLLOWS THAT THE INTERPRETATION OF THE CONCEPT AT ISSUE , CONSIDERED IN ITS ENTIRETY , MAY NOT BE LEFT TO THE DISCRETION OF EACH MEMBER STATE .

2.THE SHARES IN A COMPANY HAVE A NOMINAL AMOUNT WITHIN THE MEANING OF ARTICLE 5 ( 2 ) OF DIRECTIVE 69/335/EEC WHEN THE LEGAL STRUCTURE OF THE TYPE OF COMPANY TO WHICH THE COMPANY CONCERNED BELONGS INCLUDES AMOUNTS FIXED IN CASH , INTENDED TO QUANTIFY THE VALUE OF THE MEMBERS ' CONTRIBUTION TO THE RAISING OF CAPITAL IN THAT COMPANY AND TO CHARACTERIZE IN DURABLE FASHION THE RELATIONS BETWEEN THE MEMBERS AND THE COMPANY .

IT IS FOR THE NATIONAL COURT , TAKING INTO ACCOUNT THE CRITERIA FOR INTERPRETATION LAID DOWN BY THE COURT OF JUSTICE , TO CARRY OUT THE NECESSARY APPRAISAL BOTH OF THE RELEVANT NATIONAL RULES AND THE PROVISIONS OF THE COMPANY ' S DOCUMENTS OF CONSTITUTION IN ORDER TO ESTABLISH WHETHER THAT IS THE CASE .

3.WHENEVER A DIRECTIVE IS CORRECTLY IMPLEMENTED , ITS EFFECTS REACH INDIVIDUALS THROUGH THE INTERMEDIARY OF THE IMPLEMENTING MEASURES ADOPTED BY THE MEMBER STATE CONCERNED , WITHOUT ITS BEING NECESSARY TO EXAMINE THE QUESTION WHETHER THE PROVISION IN QUESTION MEETS THE CONDITIONS WHICH MUST BE FULFILLED FOR INDIVIDUALS TO BE ABLE TO RELY UPON IT BEFORE A NATIONAL COURT IN THE EVENT OF THE DIRECTIVE ' S NOT BEING CORRECTLY IMPLEMENTED .

Parties

IN CASE 270/81

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE FINANZGERICHT ( FINANCE COURT ) HAMBURG FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

FELICITAS RICKMERS-LINIE KG & CO .

V

Subject of the case

FINANZAMT FUR VERKEHRSTEUERN ( TAX OFFICE FOR TRANSFER DUTIES ), HAMBURG , ON THE INTERPRETATION OF ARTICLE 5 ( 2 ) OF COUNCIL DIRECTIVE 69/335/EEC OF 17 JULY 1969 CONCERNING INDIRECT TAXES ON THE RAISING OF CAPITAL ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1969 ( II ), P . 412 ),

Grounds

1 BY ORDER OF 17 SEPTEMBER 1981 , WHICH WAS RECEIVED AT THE COURT ON 6 OCTOBER 1981 , THE FINANZGERICHT ( FINANCE COURT ) HAMBURG REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY TWO QUESTIONS ON THE INTERPRETATION OF ARTICLE 5 ( 2 ) OF COUNCIL DIRECTIVE 69/335/EEC OF 17 JULY 1969 CONCERNING INDIRECT TAXES ON THE RAISING OF CAPITAL ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1969 ( II ), P . 412 ) IN ORDER TO ENABLE IT TO DETERMINE WHETHER , FOR PURPOSES OF THE ASSESSMENT OF CAPITAL DUTY , THE LIMITED PARTNERS ' SHARES IN A LIMITED PARTNERSHIP UNDER GERMAN LAW ( KOMMANDITGESELLSCHAFT ) HAVE A NOMINAL AMOUNT WITHIN THE MEANING OF THE DIRECTIVE .

2 THOSE QUESTIONS AROSE IN THE COURSE OF A DISPUTE BETWEEN THE KOMMANDITGESELLSCHAFT FELICITAS RICKMERS-LINIE KG & CO . AND THE GERMAN TAX AUTHORITY OVER...