Caixa d'Estalvis i Pensions de Barcelona v Generalidad de Cataluña.

• Jurisdiction: European Union
• Celex Number: 62012CJ0139
• ECLI: ECLI:EU:C:2014:174
• Docket Number: C-139/12
• Date: 20 March 2014
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling

JUDGMENT OF THE COURT (Tenth Chamber)

20 March 2014 ( *1 )

‛Request for a preliminary ruling — Sixth VAT Directive — Exemptions — Transactions concerning the sale of shares and involving the transfer of interests in immoveable property — Imposition of an indirect tax distinct from VAT — Articles 49 TFEU and 63 TFEU — Purely internal situation’

In Case C‑139/12,

REQUEST for a preliminary ruling under Article 267 TFEU from the Tribunal Supremo (Spain), made by decision of 9 February 2012, received at the Court on 19 March 2012, in the proceedings

Caixa d’Estalvis i Pensions de Barcelona

v

Generalidad de Cataluña,

THE COURT (Tenth Chamber),

composed of E. Juhász, President of the Chamber, A. Rosas (Rapporteur) and C. Vajda, Judges,

Advocate General: M. Wathelet,

Registrar: V. Tourrès, Administrator,

having regard to the written procedure and further to the hearing on 12 June 2013,

after considering the observations submitted on behalf of:

— La Caixa d’Estalvis i Pensions de Barcelona, by C. Gómez Barrero, J. Buendía Sierra and E. Zamarriego Santiago, abogados,

— the Generalidad de Cataluña, by N. París, acting as Agent,

— the Spanish Government, by N. Díaz Abad, acting as Agent,

— the Finnish Government, by J. Heliskoski, acting as Agent,

— the European Commission, by L. Lozano Palacios, acting as Agent,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Article 13B(d)(5) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1), as amended by Council Directive 91/680/EEC of 16 December 1991 (OJ 1991 L 376, p. 1), (‘the Sixth Directive’) and of Articles 49 TFEU and 63 TFEU.

2 The request has been made in proceedings between La Caixa d’Estalvis i Pensions de Barcelona (‘La Caixa’) and the Generalidad de Cataluña (Autonomous Government of Catalonia), concerning an application for reimbursement of tax on capital transfers and documented legal acts (‘tax on capital transfers’).

Legal context

EU law

3 Under Title V of the Sixth Directive, entitled ‘Taxable Transactions’, Article 5 of that directive provides: ‘1. “Supply of goods” shall mean the transfer of the right to dispose of tangible property as owner. ... 3. Member States may consider the following to be tangible property: ... (c) shares or interests equivalent to shares giving the holder thereof de jure or de facto rights of ownership or possession over immovable property or part thereof.’

4 Under Title X of the Sixth Directive, entitled ‘Exemptions’, Article 13, entitled ‘Exemptions within the territory of the country’, comprises parts A (‘Exemptions for certain activities in the public interest’), B (‘Other exemptions’) and C (‘Options’).

5 According to Article 13B of that directive: ‘Without prejudice to other Community provisions, Member States shall exempt the following under conditions which they shall lay down for the purpose of ensuring the correct and straightforward application of the exemptions and of preventing any possible evasion, avoidance or abuse: ... (d) the following transactions: ... 5. transactions, including negotiation, excluding management and safekeeping, in shares, interests in companies or associations, debentures and other securities, excluding: — documents establishing title to goods, — the rights or securities referred to in Article 5(3); ... (g) the supply of buildings or parts thereof, and of the land on which they stand, other than as described in Article 4(3)(a); (h) the supply of land which has not been built on other than building land as described in Article 4(3)(b).’

6 Article 4(3)(a) and (b) of the Sixth Directive refers to ‘the supply before first occupation of buildings or parts of buildings and the land on which they stand’ and to ‘the supply of building land’, respectively.

7 Article 13C of the Sixth Directive provides: ‘Member States may allow taxpayers a right of option for taxation in cases of: ... (b) the transactions covered in B(d), (g) and (h) above. Member States may restrict the scope of this right of option and shall fix the details of its use.’

8 Article 28(3) of the Sixth Directive provides: ‘During the transitional period referred to in paragraph 4, Member States may: ... (b) continue to exempt the activities set out in Annex F under conditions existing in the Member State concerned; ...’

9 Annex F to the Sixth Directive, entitled ‘Transactions referred to in Article 28(3)(b)’, refers in point 16 to ‘Supplies of those buildings and land described in Article 4(3)’.

10 Article 33(1) of the Sixth Directive provides: ‘Without prejudice to other Community provisions, in particular those laid down in the Community provisions in force relating to the general arrangements for the holding, movement and monitoring of products subject to excise duty, this Directive shall not prevent a Member State from maintaining or introducing taxes on insurance contracts, taxes on betting and gambling, excise duties, stamp duties and, more generally, any taxes, duties or charges which cannot be characterised as turnover taxes, provided however that those taxes, duties or charges do not, in trade between Member States, give rise to formalities connected with the crossing of frontiers.’

Spanish law

The legislation on value added tax

11 Article 8 of Law 30/1985 on value added tax (Ley 30/1985 del Impuesto sobre el Valor Añadido) of 2 August 1985 (BOE No 190 of 9 August 1985, p. 25214) provides: ‘The following shall be exempt from value added tax [(‘VAT’)]: ... 18. The following financial transactions, irrespective of the person or entity which carries them out: ... (g) services and transactions, excluding management and safekeeping, in shares, interests in companies, debentures and other securities which are not listed in the preceding subparagraphs of paragraph 18, excluding: a. documents establishing title to goods; b. securities giving the holder thereof de jure or de facto ownership, use or exclusive possession over immovable property. ...’

12 Article 13(1)(18)(k) of Royal Decree 2028/1985 approving the regulation on value added tax (Real Decreto 2028/1985 por el que se aprueba el Reglamento del Impuesto sobre el Valor Añadido) of 30 October 1985 (BOE No 261 of 31 October 1985, p. 34469), reproduces the abovementioned wording of Article 8 of Law 30/1985, adding the following provisions: ‘Shares or interests in companies or other entities do not come within this category. ...’

13 Article 20(1)(18)(k) of Law 37/1992 on value added tax (Ley 37/1992 del Impuesto sobre el Valor Añadido) of 28 December 1992 (BOE No 312 of 29 December 1992, p. 44247), is identical in content to the abovementioned extract of Royal Decree 2028/1985.

The legislation on the stock market

14 Article 108 of Law 24/1988 on the Stock Market (Ley 24/1988 del Mercado de Valores) of 28 July 1988 (BOE No 181 of 29 July 1988, p. 23405), as amended by Law 18/1991 on income tax payable by natural persons (Ley 18/1991 del Impuesto sobre la Renta de las Personas Físicas) of 6 June 1991 (BOE No 136 of 7 June 1991, p. 18665), (‘the Law on the Stock Market’) provides: ‘1. The transfer of securities, whether or not negotiable on an official secondary market, shall be exempt from tax on capital transfers and documented legal acts and from [VAT]. 2. By derogation from the provisions of paragraph 1, the following shall, as “transfer of assets for consideration”, be subject to tax on capital transfers and documented legal acts: 1. Transfers made on the secondary market, and also acquisitions made on the primary market as a consequence of the exercise of preferential subscription rights and of the right to convert debentures into shares, of securities which represent a portion of the share capital or assets of companies, funds, associations or other entities at least 50% of the assets of which comprise immovable property situated within the national territory, provided that, as a result of such a transfer or acquisition, the purchaser obtains full ownership of those assets or, at least, is in a position which enables it to exercise control over those entities. Control over commercial companies will be deemed to have been obtained when a shareholding of more than 50% has been acquired, whether directly or indirectly. For the purposes of calculating 50% of the assets comprising immovable property, account shall not be taken of those immovable assets, except building plots and sites, which form part of the operating assets of companies whose sole corporate object consists in the exercise of business activities involving property construction or development. 2. Transfers of company shares or shareholdings, received in consideration for immovable assets made on the occasion of the incorporation of companies or the increase in their capital, on condition that between the date of contribution and the date of transfer a period of less than one year has elapsed. In the above cases, the...