Drukarnia Multipress sp. z o.o. v Minister Finansów.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: da Cruz Vilaça
• ECLI: ECLI:EU:C:2015:253
• Docket Number: C-357/13
• Date: 22 April 2015
• Procedure Type: Reference for a preliminary ruling

JUDGMENT OF THE COURT (Second Chamber)

22 April 2015 ( *1 )

‛Reference for a preliminary ruling — Taxation — Directive 2008/7/EC — Article 2(1)(b) and (c) — Indirect taxes on the raising of capital — Subjection to capital duty — Contributions of capital to a partnership limited by shares — Classification of such a partnership as a capital company’

In Case C‑357/13,

REQUEST for a preliminary ruling under Article 267 TFEU from the Wojewódzki Sąd Administracyjny w Krakowie (Poland), made by decision of 12 April 2013, received at the Court on 27 June 2013, in the proceedings

Drukarnia Multipress sp. z o.o.

v

Minister Finansów,

THE COURT (Second Chamber),

composed of R. Silva de Lapuerta, President of the Chamber, J.-C. Bonichot, A. Arabadjiev, J.L. da Cruz Vilaça (Rapporteur) and C. Lycourgos, Judges,

Advocate General: N. Jääskinen,

Registrar: M. Aleksejev, Administrator,

having regard to the written procedure and further to the hearing on 22 October 2014,

after considering the observations submitted on behalf of:

— Drukarnia Multipress sp. z o.o., by K. Turzyński and M. Kolibski, doradcy podatkowi,

— the Minister Finansów, by A. Ćwik-Bury, acting as Agent,

— the Polish Government, by B. Majczyna and A. Kramarczyk-Szaładzińska, acting as Agents,

— the European Commission, by K. Herrmann and W. Roels, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 18 December 2014,

gives the following

Judgment

1 This reference for a preliminary ruling concerns the interpretation of Article 2(1)(b) and (c) and (2) and Article 9 of Council Directive 2008/7/EC of 12 February 2008 concerning indirect taxes on the raising of capital (OJ 2008 L 46, p. 11).

2 The reference has been made in proceedings between Drukarnia Multipress sp. z o.o. (‘Drukarnia’) and the Minister Finansów (Minister for Finance, ‘the Minister’) concerning the charging of a tax designated ‘tax on civil-law acts’ on certain restructuring operations carried out by a partnership limited by shares (‘PLS’) under Polish law.

Legal context

EU law

3 Directive 2008/7, in accordance with Article 16, repealed and replaced with effect from 1 January 2009 Council Directive 69/335/EEC of 17 July 1969 concerning indirect taxes on the raising of capital (OJ, English Special Edition 1969(II), p. 412), as amended by Council Directive 2006/98/EC of 20 November 2006 (OJ 2006 L 363, p. 129).

4 Recitals 2 to 6 in the preamble to Directive 2008/7 read as follows: ‘(2) The indirect taxes on the raising of capital, namely the capital duty (the duty chargeable on contributions of capital to companies and firms), the stamp duty on securities, and duty on restructuring operations, regardless of whether those operations involve an increase in capital, give rise to discrimination, double taxation and disparities which interfere with the free movement of capital. The same applies as regards other indirect taxes with the same characteristics as capital duty and the stamp duty on securities. (3) Consequently, it is in the interests of the internal market to harmonise the legislation on indirect taxes on the raising of capital in order to eliminate, as far as possible, factors which may distort conditions of competition or hinder the free movement of capital. (4) The economic effects of capital duty are detrimental to the regrouping and development of undertakings. Such effects are particularly harmful in the present economic situation in which there is a paramount need for priority to be given to stimulating investment. (5) The best solution for attaining these objectives would be to abolish capital duty. (6) However, the losses of revenue which would result from the immediate application of such a measure are unacceptable for Member States which currently apply capital duty. Those Member States should therefore have the opportunity to continue to subject to capital duty all or part of the transactions concerned, it being understood that a single rate of tax must be charged within one and the same Member State. Once a Member State has chosen not to levy capital duty on all or part of the transactions under this Directive, it should not be possible for it to reintroduce such duties.’

5 Article 2 of Directive 2008/7, ‘Capital company’, reads as follows: ‘1. For the purposes of this Directive “capital company” means: (a) any company which takes one of the forms listed in Annex I; (b) any company, firm, association or legal person the shares in whose capital or assets can be dealt in on a stock exchange; (c) any company, firm, association or legal person operating for profit, whose members have the right to dispose of their shares to third parties without prior authorisation and are only responsible for the debts of the company, firm, association or legal person to the extent of their shares. 2. For the purposes of this Directive, any other company, firm, association or legal person operating for profit shall be deemed to be a capital company.’

6 Article 4 of that directive, ‘Restructuring operations’, provides in paragraph 1(b): ‘For the purposes of this Directive, the following restructuring operations shall not be considered to be contributions of capital: … (b) the acquisition, by a capital company which is in the process of being formed or which is already in existence, of shares representing a majority of the voting rights of another capital company, provided that the consideration for the shares acquired consists at least in part of securities representing the capital of the former company. Where the majority of the voting rights is reached by means of two or more transactions, only the transaction whereby the majority of voting rights is reached and any subsequent transactions shall be regarded as restructuring operations.’

7 Article 5 of the directive, ‘Transactions not subject to indirect tax’, provides in paragraph 1(e): ‘Member States shall not subject capital companies to any form of indirect tax whatsoever in respect of the following: … (e) the restructuring operations referred to in Article 4.’

8 In accordance with Article 9 of the directive, ‘Exclusion of certain entities from the scope of application’: ‘Member States may for the purposes of levying capital duty choose not to regard as capital companies the entities referred to in Article 2(2).’

9 Article 12 of the directive, ‘Exclusion from the basis of assessment for capital duty’, provides in the first subparagraph of paragraph 2: ‘A Member State may exclude from the basis of assessment for capital duty the amount of the capital contributed by a member with unlimited liability for the obligations of a capital company as well as the share of such a member in the company’s assets.’

10 Annex I to the directive consists of a list entitled ‘List of companies referred to in Article 2(1)(a)’, including in point 21 the share company (spółka akcyjna) and limited liability company (spółka z ograniczoną odpowiedzialnością) under Polish law.

Polish law

11 Article 1 of the Law on the tax on civil-law acts (Ustawa o podatku od czynności cywilnoprawnych) of 9 September 2000, in the version applicable in the main proceedings (Dz. U., 2010, No 101, item 649), (‘the PCC Law’) provides: ‘1. Tax shall be chargeable on: (1) the following civil-law acts: … (k) the founding documents of a company or partnership; (2) amendments to the contracts referred to in subparagraph 1, if they give rise to an increase in the basis of assessment for the tax on civil-law acts … … 3. In the case of the founding document of a company or partnership, the following shall be considered to be an amendment to the document: (1) in the case of a partnership: a contribution or increased contribution whose value leads to an increase in the assets of the partnership or an increase in its capital, a loan granted to the partnership by a member, additional payments or donations by a member to the partnership of property or property rights for use free of charge; …’

12 Article 1a(1) of the PCC Law provides: ‘The expressions used in this law shall mean: (1) partnership: … a partnership limited by shares [“spółka komandytowo-akcyjna”]’.

13 Under Article 2(6)(c) of the PCC Law: ‘Tax shall not be chargeable on: … (6) the founding documents of a company or partnership and amendments to them in connection with: … (c) a contribution to a...