OPINION OF ADVOCATE GENERAL

delivered on 14 November 1995 (*1)

Table of Contents

I — The factual background

A — Case C-197/94

B — Case C-252/94

II — The national legislation

HI — The Community rules

IV — Preliminary observation

V — The questions referred for a preliminary ruling

A — The nature of the duty at issue in the light of Directive 69/335

B — The effect of the possibly special nature or function of the duty at issue in the context of the national tax system

C — Whether the duty in issue is subject to a special arrangement derogating from the provisions of Directive 69/335

VI — The effects <span class="italic">rattorte temporis</span> of the Court's judgment on the questions referred for a preliminary ruling

VII — Conclusion

The rwo questions submitted to the Court for a preliminary ruling by the Tribunaux de Grande Instance (Regional Courts) of Dax and Quimper in Cases C-197/94 and C-252/94 respectively concern the interpretation of Article 7 of Council Directive 69/335/EEC of 17 July 1969 concerning indirect taxes on the raising of capital (1) (‘Directive 69/335’). In both cases, the national court has thought it necessary to refer questions for a preliminary ruling in order to decide whether or not certain provisions of the French General Tax Code (‘the Code’) relating to the tax system in respect of merger transactions are compatible with Directive 69/335.

I — The factual background

A — Case C-197/94

1.By private agreement of 5 November 1990 Société Nouvelle de Matériaux et Travaux Publics SARL (‘SNMTP’) transferred to Société Anonyme Bautiaa (‘Bautiaa’), by way of merger, the whole of its assets at a net value of FF 1931948, in consideration of the allotment of 142 new shares in Bautiaa each having a nominal value of FF 250. The merger agreement provided, in particular, that the proportional registration duty of 1.20% applying to merger transactions was to be paid on the sum of FF 1881948, representing the difference between the value of the net assets contributed by SNMTP and the amount of its paid-up and unredeemed share capital.

2.Registration of the merger was completed on 9 January 1991 in the Dax Sud tax office. On the same day, Bautiaa paid the proportional duty provided for in respect of that registration. (2)

3.By complaint dated 31 December 1991 Bautiaa applied to the tax authorities for reimbursement of the sum paid by it in that respect, together with interest due, on the ground that Article 816-I-2 of the Code, imposing on merger transactions a proportional registration duty of 1.20%, was incompatible with Directive 69/335 which, as amended by Directive 85/303/EEC, (3) prohibited (according to Bautiaa) the levying of duties on mergers concluded on or after 1 January 1986.

Following the rejection of its complaint by express decision of the Head of the Landes Tax Office, (4) Bautiaa brought proceedings against the latter, by writ of 9 July 1992, before the Tribunal de Grande Instance, Dax, claiming reimbursement of the proportional registration duty paid by it, together with default interest. In order to determine the dispute before it, that court referred the following question to the Court of Justice for a preliminary ruling:

‘Must Article 99 et seq. of the Treaty and Article 7 of Directive 69/335/EEC of 17 July 1969 (as most recently amended by Directive 85/303/EEC of 10 June 1985) be interpreted as precluding the application of national legislation which maintains at 1.20% the registration duty payable on company mergers, as in the case of Articles 812 to 816-1 of the General Tax Code?’

B — Case C-252/94

The national court seeks guidance on the circumstances giving rise to the tax obligation the existence of which is contested in the proceedings before it. However, it appears from the very sparse information contained in that regard in the judgment making the reference, combined with the evidence furnished in the written observations submitted to the Court by the plaintiff in the main proceedings, Société Française Maritime SA (‘SFM’), which is not contested in that connection, that:

between 1987 and 1991 fifteen other undertakings were taken over by SFM;

with regard to the registration of the corresponding merger transactions, SFM paid on 27 January 1987, 17 January 1989 and 23 January 1991 a proportional registration duty of 1.20%, as well as a fixed duty;

the sums paid for the reasons set out above totalled FF 1406940.

On 20 November 1992 SFM brought proceedings against the Finistère Tax Office before the Tribunal de Grande Instance, Quimper, claiming reimbursement of the duties paid by it in respect of the proportional registration duty on the merger transactions referred to above. According to the arguments advanced in the writ, Article 816-I-2 of the Code, which provides for the contested duty, is incompatible with Directive 69/335, Article 7 of which, as applicable since its amendment by Directive 85/303, prohibits (according to SFM) the levying of a proportional duty on mergers between companies concluded on or after 1 January 1986.

By judgment of 9 April 1994, the Tribunal de Grande Instance, Quimper, held that:

under the relevant provisions of the national legislation (Article R* 196-1 of the Livre des Procédures Fiscales (Code of Fiscal Procedure)), SFM's application for reimbursement of the sums paid in respect of proportional registration duty in 1987 and 1989 was time-barred;

for the purposes of determining the dispute as regards the proportional registration duty paid in 1991, the following question was to be referred to the Court of Justice for a preliminary ruling:

‘Does Directive 85/303 of 10 June 1985, which determines in particular the system of taxation applicable to mergers and which provides that “Member States shall exempt from capital duty transactions ... which were, as at 1 July 1984, exempted or taxed at a rate of 0.50% or less” (Article 7(1) of the directive), in conjunction with Directive 73/80 of 9 April 1973 which set the ceiling, with effect from 1 January 1976, for the duty levied upon company mergers at 0.50%, authorize the levying, by the tax authority of a Member State, of a proportional registration duty at a rate of 1.20% on company mergers?’

II — The national legislation

The judgments making the references do not set out the full text of the contested national legislation. However, their contents are not contested by the parties which have submitted written observations to the Court.

In particular:

Article 810-1 and II of the Code, in the version thereof applicable at the material time, fixed at 1% the rate of registration duty payable on contributions of movable assets and the rate of registration duty, alternatively the charge for the publication of land registry notices, payable on contributions of immovable property. Article 812-I-1 provided that:

‘... the duty prescribed by Article 810-1 shall be payable at the rate of 3% where it applies to acts increasing, by the capitalization of profits or of permanent or temporary reserves of any kind, the capital of the companies referred to in Article 108’ (that is to say, companies liable to corporation tax),

whilst Article 816-1 provided as follows:

‘Acts recording merger transactions entered into exclusively by legal persons or organizations liable to corporation tax shall be subject to the following arrangements:

(2)

(3)

(4)

(5)

(6)

(7)

(8)

(9)

(10)

(11)

(12)

(13)

(14)

(15)

(16)

(17)

(18)

(19)

(20)

(21)

(22)

(23)

(24)

(25)

(26)

(27)

(28)

(29)

(30)

(31)

(32)

(33)

(34)

(35)

(36)

(37)

(38)

(39)

(40)

(41)

Costs

42.Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Fourth Chamber) hereby rules:

Article 1(1) of Council Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses must be interpreted as meaning that, in the context of the takeover by an economic entity of an activity the pursuit of which requires substantial operating resources, under a procedure for the award of a public contract, the fact that that entity does not take over those resources, which are the property of the economic entity previously engaged in that activity, on account of legal, environmental and technical constraints imposed by the contracting authority, cannot necessarily preclude the classification of that takeover of activity as a transfer of an undertaking, since other factual circumstances, such as the taking‑over of the majority of the employees and the pursuit, without interruption, of that activity, make it possible to establish that the identity of the economic entity concerned has been retained, this being a matter for the referring court to assess.

[Signatures]

* * *

(*1) Language of the case: English.

A fixed registration duty or a fixed charge for the publication of notices in respect of immovable property shall be payable in the sum of 1220 francs;

(2)The proportional duty of 3% provided for in Article 812-I-1 shall be reduced to 1.20%.

It shall be calculated on the value of the net assets of the company acquired, subject to deduction of the amount of its share capital which is paid up and unredeemed ...’

The written observations submitted to the Court by the French Government state that, after the contested duties had been levied on Bautiaa and SFM, the relevant provisions of the Code were altered substantially: the 1992 Loi de Finances (Finance Law) (Law 91-1322 of 30 December 1991) abolished the 1% proportional registration duty on the contributions referred to in Article 810-1 and II, replacing it with a fixed duty of FF 430, whilst the 1994 Loi de Finances (Law 93-1352 of 30 December 1993) abolished both the 3% proportional registration duty provided for by Article 812-I-1 on capital increases effected by the capitalization of profits or of permanent or temporary reserves and the corresponding duty of 1.20% on merger transactions provided for by Article 816-I-2. The abolition of the two latter duties extends to all operations (capital increases and mergers) concluded after 15 October 1993.

III — The Community rules

Article 1 of Directive 69/335, which was adopted on the basis of Articles 99 and 100 of the EEC Treaty, provides that Member States are to charge on contributions of capital to capital companies a duty harmonized in accordance with the provisions of Articles 2 to 9 of that directive. Article 4(1 )(c) renders subject to that duty (‘capital duty’), in particular, ‘an increase in the capital of a capital company by contribution of assets of any kind’, whilst the original version of Article 4(2)(a) provided that such duty was also payable, in particular, on ‘an increase in the capital of a capital company by capitalization of profits or of permanent or temporary reserves’.

‘1. ...

(a)the rate of capital duty may not exceed 2% or be less than 1%;

(b)this rate shall be reduced by 50% or more when one or more capital companies transfer all their assets and liabilities, or one or more parts of their business, to one or more capital companies which are in the process of being formed or which are already in existence.

Where a Member State exercises the power provided for in Article 4(2), capital duty may be charged at a reduced rate.’

The following were subsequently adopted:

(a)Council Directive 73/80/EEC of 9 April 1973 (‘Directive 73/80’), Article 1 of which provided that the rate of the capital duty provided for in Article 7 of Directive 69/335 was to be fixed at 1% with effect from 1 January 1976 and Article 2 of which provided that, with effect from 1 January 1976, the reduced rate provided for in Article 7(1 )(b) of Directive 69/335 was to be any rate between 0% and 0.50%;

(b)Directive 85/303, Article 1(2) of which substituted the following wording in place of Article 7 of Directive 69/335:

1.Member States shall exempt from capital duty transactions, other than those referred to in Article 9, which were, as at 1 July 1984, exempted or taxed at a rate of 0.50% or less (...).

2.Member States may either exempt from capital duty all transactions other than those referred to in paragraph 1 or charge duty on them at a single rate not exceeding 1%.

Lastly, Article 9 of Directive 69/335 provides:

‘Certain types of transactions or of capital companies may be the subject of exemptions, reductions or increases in rates in order to achieve fairness in taxation, or for social considerations, or to enable a Member State to deal with special situations. The Member State which proposes to take such a measure shall refer the matter to the Commission in good time, having regard to the application of Article 102 of the Treaty’,

whilst Article 10 of that directive provides as follows:

‘Apart from capital duty, Member States shall not charge, with regard to companies, firms, associations or legal persons operating for profit, any taxes whatsoever:

in respect of the transactions referred to in Article 4; (b) in respect of contributions, loans or the provision of services, occurring as part of the transactions referred to in Article 4;(c) in respect of registration or any other formality required before the commencement of business to which a company, firm, association or legal person operating for profit may be subject by reason of its legal form’.

IV — Preliminary observation

11.As stated above (point 7) in relation to the facts of Case C-252/94, the Tribunal de Grande Instance, Quimper, considered that it was necessary, for the purposes of determining the dispute before it concerning the legality of the contested registration duty levied in 1991, to refer a question for a preliminary ruling on the interpretation of Article 7 of Directive 69/335 but that, as regards the levying of that duty in 1987 and 1989, SFM's application was time-barred.

12.In order to rebut the tax authority's objection regarding a time-bar, SFM relied, in the proceedings before the Tribunal de Grande Instance, on the judgment of the Court of Justice in Case C-208/90 Emmott. The Court stated in that judgment (see, in particular, paragraph 23) that, until such time as a directive has been properly transposed, a defaulting Member State which has not transposed that directive into its national legal order ‘may not rely on an individual's delay in initiating proceedings against it in order to protect rights conferred upon him by the provisions of the directive and (...) a period laid down by national law within which proceedings must be initiated cannot begin to run before that time’. In the written observations submitted by it to the Court, SFM now contends that the judgment of the national court declaring that its application for reimbursement of the duties paid in 1987 and 1989 was time-barred conflicts with the decision in Emmott; and it requests the Court to state in its answer to the question referred for a preliminary ruling by the Tribunal de Grande Instance, Quimper, that the period within which proceedings must be initiated for reimbursement of the wrongly paid duties in issue cannot start to run until Directive 69/335 has been properly transposed into the national legal order.

It clearly does not fall to the Court to answer that question.

13.By virtue of the division of jurisdiction provided for by Article 177 of the Treaty in preliminary-ruling proceedings, it is for the national court alone to determine the subject-matter of the questions to be referred by it. Consequently, it is not open to the Court, on an application to that effect made by a party to the main proceedings, to examine a question which has not been submitted to it by the national court or to widen the subject-matter of the question referred. That is clearly all the more so where, as in the present case, one of the parties to the main proceedings asks the Court to examine an issue raised before the national court concerning which the latter has refused, implicitly or otherwise, to refer a question for a preliminary ruling.

14.Moreover, there is a further, even more fundamental reason why the issue raised by SFM cannot be examined by the Court: as it has previously held, the Court has no jurisdiction to hear a reference for a preliminary ruling when at the time it is made the procedure before the court making it has already been terminated. In the present case, the proceedings initiated by SFM are still pending before the Tribunal de Grande Instance, Quimper, but only as regards the claim for reimbursement of the duties paid in 1991.

As regards the claim for reimbursement of the duties paid in 1987 and 1989, on the other hand, the litigation before the national court has ceased to exist, since that court has held that that part of SFM's application must be rejected as time-barred. Yet the issue raised by SFM (whether the period laid down by national law for bringing an action for reimbursement of the wrongly paid duties starts to run before the relevant directive has been properly transposed into the national legal order) is solely concerned with that part of the dispute regarding which the procedure before the national court has already terminated; consequently, the Court of Justice has no jurisdiction in any event to rule on that question. Lastly, at the risk of stating the obvious, I would add that Article 177 of the Treaty, which establishes, as between the Court of Justice and the national court, not a hierarchical relationship but one of collaboration, clearly does not authorize the Court, as a hierarchically superior institution, to review, in the light of Community law, the validity of the grounds which prompted the Tribunal de Grande Instance, Quimper, to decide to reject part of SFM's application as time-barred.

V — The questions referred for a preliminary ruling

15.Despite the differences in the way in which they are formulated, the references for a preliminary ruling made by the Tribunal de Grande Instance, Dax, and the Tribunal de Grande Instance, Quimper, raise exactly the same issue: does Article 7 of Directive 69/335, as amended by Directive 85/303, authorize the levying by a Member State of a proportional duty of 1.20% on the transactions described in the two judgments making the references as ‘company merger transactions’?

16.Bautiaa and SFM, together with the Commission, argue that that question should be answered in the negative. The French Government, on the other hand, contends that, at the material time, the duty in issue could properly be levied, because it served a specific function within the framework of the French tax system which France had invoked when Directive 69/335 was being drawn up, in order to secure an exception with regard to that duty.

In my view, it is necessary, in examining the questions referred, to consider first of all the nature of the duty to which those questions relate in the light of the provisions of Directive 69/335 (see A, below). Next, I propose to examine the two questions raised by the arguments of the French Government, namely whether the characterization of that duty within the framework of Directive 69/335 may be influenced by its (possibly specific) nature or function within the framework of the French tax system (see B, below) and whether there exists, under that directive, a special scheme to which that duty is subject (see C, below).

A — The nature of the duty at issue in the light of Directive 69/335

18.As the Court has pointed out ever since it delivered its first judgment on questions referred for a preliminary ruling in relation to the interpretation of the provisions of Directive 69/335, the preamble to that directive indicates with particular clarity the objectives pursued by the Community legislature in adopting it: in order to encourage the free movement of capital, which is regarded as essential for the creation of an economic union whose characteristics are similar to those of a domestic market, it was necessary to eliminate the discriminations, disparities and double taxation created by indirect taxes on the raising of capital in force in the Member States. In order for that objective to be attained, it was considered necessary, first, to abolish the stamp duty levied on securities by Member States and, second, to introduce, in place of the duty levied by Member States on contributions to companies, a tax levied only once in the common market and at the same rate in all the Member States. The directive thus provided for the introduction of a single duty on contributions to companies (‘capital duty’) which was to be harmonized as regards both its structure and its rates.

19.I have already mentioned (see part III, above) the fact that Article 4 of Directive 69/335 lists the transactions which are subject to the harmonized capital duty (paragraph 1) and the transactions on which Member States may levy that duty (paragraph 2), and the fact that Article 7, to which the questions referred by the national courts relate, lays down the rates of that harmonized duty.

20.In its initial version, Article 7(l)(a) provided that the rate of capital duty should not exceed 2% or be less than 1%. However, Article 7(1 )(b) provided that that rate was to be ‘reduced by 50% or more’, in particular, when one or more capital companies transfer all their assets and liabilities to one or more capital companies which are already in existence, subject to the additional proviso (see the first indent of the second subsubparagraph of Article 7(1 )(b)) that the consideration for such a contribution is in principle to consist exclusively of the allocation of shares. Thus, with effect from 1 January 1972 (by which date, according to Article 13 of the directive, the provisions necessary to comply with it were to be brought into force), it was open to the Member States either to exempt the transactions referred to in Article 7(1)(b) from capital duty or to introduce, specifically in relation to those transactions, a reduced rate not exceeding 50% of the general rate. The Council then proceeded to adopt Directive 73/80, Article 2 of which provided that, with effect from 1 January 1976, it was to be open to the Member States either to exempt the transactions referred to from capital duty by applying to them a rate of 0% or to subject them to capital duty, but at a rate not exceeding 0.50%. Lastly, Article 1(2) of Directive 85/303 replaced Article 7 of Directive 69/335 by a provision providing in paragraph (1) that (subject to the derogation contained in Article 9 of Directive 69/335) Member States were to exempt from capital duty transactions which were, as at 1 July 1984, exempted or taxed at a rate of 0.50% or less. In this way, the progressive reduction of duty on the transactions referred to in Article 7(l)(b) of Directive 69/335, as originally worded, was achieved, since, under Directive 73/80, those transactions had with effect from 1 January 1976 either to be exempt from capital duty or to be subject to a rate not exceeding 0.50%, and had to be exempt from such duty with effect from 1 January 1986, that date being the deadline for the introduction by the Member States of the measures necessary in order to comply with Directive 85/303.

21.There can be no doubt, in my view, that a transaction possessing the characteristics of the transaction forming the subject-matter of the reference from the Tribunal de Grande Instance, Dax, which is described in its judgment as having given rise to the duty paid by Bautiaa, must fall within the transactions referred to in Article 7(l)(b) of the original version of the directive. According to the description of the facts set out in that judgment, the transaction in question in fact consisted of the contribution by SNMTP of all its assets to Bautiaa, the sole consideration — it would appear — being the allotment of shares in the latter company. Although the Tribunal de Grande Instance, Quimper, does not provide similar information as to the nature of the transactions the taxation of which prompted SFM to bring the proceedings before it, I consider, having regard primarily to the fact that the judgment making the reference in that case uses the same terms of national law (‘merger transactions’) to describe the transactions in question as those used by the Tribunal de Grande Instance, Dax, in describing the transactions in respect of which duty was paid by Bautiaa, that the transactions in respect of which duty was paid by SFM were of a similar nature.

22.In view of the foregoing, the inevitable conclusion must be that a proportional duty, such as the duty in issue, on transactions in the nature of the transactions the taxation of which gave rise to the proceedings before the national courts, that is to say, transactions consisting of the transfer by one capital company of all its assets to another capital company, solely in consideration of the allotment of shares, constitutes a capital duty the introduction or maintenance of which after 1 January 1986 is incompatible with Directive 69/335 and, more particularly, with Article 7(1) of that directive as replaced by Directive 85/303.

B — The effect of the possibly special nature or function of the duty at issue in the context of the national tax system

23.The French Government seeks to characterize the duty at issue (which, as will be noted, it expressly describes in its written observations as ‘capital duty’) in legal terms by means of an analysis based on the special nature of that duty in the context of the French tax system.

24.For a full account of the French Government's analysis, it is necessary to compare the arguments set out in the written observations submitted by it to the Court with those of the tax authorities in the proceedings before the Tribunal de Grande Instance, Dax, as described in the judgment of that court. On the basis of those elements, the French Government's position may be summarized as follows: Article 816-I-2 of the General Tax Code, pursuant to which duty was charged on the transactions described in the judgments making the references, imposed duty at 1.20% on mergers between companies. Those transactions entailed the dissolution of the company acquired and the transfer of all its assets and liabilities to the acquiring company. According to the French Government, the contribution of assets and liabilities to the acquiring company in the context of those transactions is liable to a fixed duty laid down by Article 816-I-1 of the Code.

25.The French Government further contends, however, that a merger transaction also involves the incorporation of the reserves of the company acquired in the capital of the company acquiring it or in fiscally analogous repositories. For that reason, merger transactions were subject in France to the proportional duty on the capitalization of reserves laid down in Article 812-I-1 of the General Tax Code; however, merger transactions were subject to duty not at the rate of 3% prescribed by that Article but at the rate of 1.20%, in accordance with Article 816-I-2 of the General Tax Code.

Moreover, according to the French Government, those duties fulfilled the following special function: under French law, the capitalization of reserves is regarded as a transaction which in fact consists of two stages, namely a distribution of reserves to the shareholders and the immediate contribution of the distributed reserves by those shareholders to the company. That is also the position where the capitalization of reserves takes place in the context of a merger between companies; the reserves of the company acquired are distributed to its shareholders, who immediately contribute them to the acquiring company. French tax law exempts from tax any distribution of securities occurring by virtue of a capitalization of reserves or a merger between companies, notwithstanding that such a distribution may conceal, for the reasons set out above, a distribution of reserves. The corresponding revenue accruing to the shareholders is taxed on any subsequent distribution to them of the capitalized reserves. In the light of those considerations, the proportional duty on capitalizations of reserves and mergers between companies (3% and 1.20% respectively) constitutes, according to the French Government, tax in lieu of the uncollected tax on the distribution of reserves taking place in the circumstances set out above.

27.In my view, the point that emerges from the complex analysis set out above is that, according to the French Government, the duty in issue, as conceived by the French tax system, (a) applied to transactions (company mergers) involving the capitalization of reserves and (b) replaced the tax from which the distribution of reserves concealed by the aforementioned transactions was exempted.

28.As I have already mentioned (see point 16 above), the French Government contends that the duty is subject to an exceptional arrangement which, by means of arguments concerning the special nature of that duty and its particular function within the framework of the French tax system, France was able to secure in the course of the formulation of Directive 69/335. The only evidence relied on in that regard by the French Government in its written observations is a document of the Council, dated 6 March 1969, concerning the stage reached in the preparatory work on the proposal for the directive ultimately adopted as Directive 69/335. That document is addressed to the Committee of Permanent Representatives which is called upon to decide, in particular, how to deal with certain declarations made in the course of the preparatory work on the directive. The Committee was called upon, more especially, to decide whether to confirm the agreement of the Member States' delegations to those declarations and to request the Council to record them in the minutes of the meeting held to approve the directive. The declarations are annexed to the document; in particular, page 4 of the Annex contains the following passage concerning Article 9 of the draft directive:

‘The delegations find ... that that article (Article 9 of the directive) allows France to apply to the transactions referred to in Article 4(2)(a) rates different from those provided for by Article 7(4)’.

29.It cannot be inferred from that evidence that the duty in issue is subject to a special arrangement derogating from the provisions of Directive 69/335, for several reasons.

30.First of all, the French Government does not even state whether the declaration cited by it appeared in the final version of the minutes of the Council meeting in question. There is nothing in the documents before the Court which justifies any such conclusion; moreover, the Commission stated at the hearing that the inquiries carried out by it in that connection had been to no avail.

31.Regardless of that, however, it should be recalled that, as the Court has consistently held, declarations recorded in the minutes of meetings of the Council (whether declarations by that institution or unilateral declarations emanating from Member States) have no legal significance where no reference is made to the content of the declaration in the wording of the secondary legislation in question. Consequently, even if it were accepted that a declaration having the same content as that of the document relied on by the French Government was definitively recorded in the Council minutes of the meeting at which the directive was adopted, that declaration could only be taken into consideration in so far as it was compatible with the wording of the provisions of Directive 69/335; the declaration in issue could not serve as the basis for a derogation from those provisions.

32.In the light of those restrictions, the only significance which could in any event attach to the declaration in issue would be that it was open to the French Republic, by complying with the procedure laid down in Article 9 of the directive, to maintain or establish, in relation to capital duty on the transactions listed in Article 4(2)(a) of the directive, higher rates than those laid down by Article 7(1) of the directive. On the other hand, there could be absolutely no question of accepting the French Government's contention that that declaration is enough to justify charging duty on the contribution by one company of all its assets and liabilities to another company on terms derogating from Article 7(l)(b) of the directive, first, because, for the reasons already stated (see parts A and B immediately above), that transaction cannot be regarded, within the scheme of Directive 69/335, as one of the transactions covered by Article 4(2)(a) of the directive, to which the abovementioned declaration refers, and, second, because, in any event, the French Government is not contending, and it is not otherwise apparent from the documents before the Court, that France subjected those transactions to the duty in question after first complying with the mandatory procedure laid down by Article 9 of the directive, from which, as has been explained, the declaration relied on was not enough to exempt it.

33.As I have already mentioned (see point 16 above), the French Government contends that the duty is subject to an exceptional arrangement which, by means of arguments concerning the special nature of that duty and its particular function within the framework of the French tax system, France was able to secure in the course of the formulation of Directive 69/335. The only evidence relied on in that regard by the French Government in its written observations is a document of the Council, dated 6 March 1969, concerning the stage reached in the preparatory work on the proposal for the directive ultimately adopted as Directive 69/335. That document is addressed to the Committee of Permanent Representatives which is called upon to decide, in particular, how to deal with certain declarations made in the course of the preparatory work on the directive. The Committee was called upon, more especially, to decide whether to confirm the agreement of the Member States' delegations to those declarations and to request the Council to record them in the minutes of the meeting held to approve the directive. The declarations are annexed to the document; in particular, page 4 of the Annex contains the following passage concerning Article 9 of the draft directive:

‘The delegations find ... that that article (Article 9 of the directive) allows France to apply to the transactions referred to in Article 4(2)(a) rates different from those provided for by Article 7(4)’.

34.It cannot be inferred from that evidence that the duty in issue is subject to a special arrangement derogating from the provisions of Directive 69/335, for several reasons.

35.First of all, the French Government does not even state whether the declaration cited by it appeared in the final version of the minutes of the Council meeting in question. There is nothing in the documents before the Court which justifies any such conclusion; moreover, the Commission stated at the hearing that the inquiries carried out by it in that connection had been to no avail.

36.Regardless of that, however, it should be recalled that, as the Court has consistently held, declarations recorded in the minutes of meetings of the Council (whether declarations by that institution or unilateral declarations emanating from Member States) have no legal significance where no reference is made to the content of the declaration in the wording of the secondary legislation in question. Consequently, even if it were accepted that a declaration having the same content as that of the document relied on by the French Government was definitively recorded in the Council minutes of the meeting at which the directive was adopted, that declaration could only be taken into consideration in so far as it was compatible with the wording of the provisions of Directive 69/335; the declaration in issue could not serve as the basis for a derogation from those provisions.

37.In the light of those restrictions, the only significance which could in any event attach to the declaration in issue would be that it was open to the French Republic, by complying with the procedure laid down in Article 9 of the directive, to maintain or establish, in relation to capital duty on the transactions listed in Article 4(2)(a) of the directive, higher rates than those laid down by Article 7(1) of the directive. On the other hand, there could be absolutely no question of accepting the French Government's contention that that declaration is enough to justify charging duty on the contribution by one company of all its assets and liabilities to another company on terms derogating from Article 7(l)(b) of the directive, first, because, for the reasons already stated (see parts A and B immediately above), that transaction cannot be regarded, within the scheme of Directive 69/335, as one of the transactions covered by Article 4(2)(a) of the directive, to which the abovementioned declaration refers, and, second, because, in any event, the French Government is not contending, and it is not otherwise apparent from the documents before the Court, that France subjected those transactions to the duty in question after first complying with the mandatory procedure laid down by Article 9 of the directive, from which, as has been explained, the declaration relied on was not enough to exempt it.

38.The French Government referred at length, for the first time during the oral procedure, to certain other documents not included in the case-file which confirm, it claims, that the duty in issue is subject to a special arrangement.

38.Regardless of whether reference may legitimately be made to those documents for the first time during the oral procedure, I cannot see how their contents, as explained at the hearing, could have any bearing on the case. I do not propose to deal with the earliest of those documents, which was described at the hearing as a reasoned opinion of 22 June 1972 addressed by the Commission to the French Republic and dealing with the failure to transpose Directive 69/335 within the prescribed period; as the French Government's agent acknowledged, the reference to that document was made purely for the sake of completeness. In the second document, dated 30 November 1972, the Commission is said to have expressed doubts, in particular as to the compatibility with the directive of continuing to apply the duty at the rate of 1.20%. In its reply, the French Republic expanded its argument concerning the existence of a special arrangement in respect of that duty; this was followed by another letter from the Commission, dated 27 July 1973, in which, according to the explanations given at the hearing, the Commission, whilst maintaining the remainder of its observations and objections concerning various other aspects of French tax law, made no mention of the rate of the duty. The French Government considers that the latter factors constitute ‘tacit approval’ by the Commission of the special derogation from Directive 69/335 on which it relies. That argument cannot be upheld. Where, as in the present case, a Member State has not complied with the procedure laid down in Article 9 of Directive 69/335 when introducing or maintaining provisions derogating from those of that directive, no conduct on the part of the Commission can suffice to render those provisions compatible with the scheme of the directive.

VI — The effects ratione temporis of the Court's judgment on the questions referred for a preliminary ruling

39.During the oral procedure, the French Government requested the Court, in the alternative, to limit the temporal effects of the judgment to be delivered by it on the questions referred for a preliminary ruling by the Tribunal de Grande Instance, Dax, and the Tribunal de Grande Instance, Quimper, in the event that it holds the introduction or maintenance, after 1 January 1986, of a charge in the nature of the duty referred to in those questions to be contrary to the provisions of Directive 69/335, as applicable at the material time in the present case.

40.It is settled case-law that 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 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 a rule of Community law as thus interpreted may, and must, be applied by the courts even to legal relationships arising and established before delivery of the judgment ruling on the request for interpretation, provided that in other respects the conditions under which an action relating to the application of that rule may be brought before the courts having jurisdiction are satisfied.

41.Derogation from that principle is permissible only in quite exceptional circumstances, where the Court considers that compliance with it breaches the principle of legal certainty inherent in the Community legal order. In considering whether that principle necessitates the imposition of a temporal limit on the effects of a judgment ruling on a request for interpretation, the Court must ascertain (a) whether 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 (b) whether 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 precise scope of the rule of Community law interpreted by the Court; if it finds that the attitude adopted by other Member States or the Commission contributed to that uncertainty, that will have a particular bearing on its assessment of the matter in that regard.

42.The French Government maintains, first, that a restriction of the judgment's effects in time is necessary in the present case precisely because the attitude adopted by the other Member States and the Commission has created ‘objective, significant uncertainty’ as to whether or not the duty in issue was subject to a special arrangement derogating from the provisions of Directive 69/335. As is apparent from all the oral observations submitted by the French Government, that uncertainty was in its view created, first, by the declaration of the delegations of the Member States annexed to the document of 6 March 1969, to which it refers in its written observations, and, second, by the fact that although, in its letter of November 1972, the Commission raised the question of the compatibility of the duty in issue with Directive 69/335, it made no further reference to it, after receiving the French Republic's reply to that letter, until August 1992, when it again raised the point in a fresh letter.

43.As the French Government itself points out in paragraph 5 of its written observations, ‘the maintenance of capital duties on mergers is not exactly in line with the wording of Article 7(1) of Directive 69/335’. I can only add that neither can Article 9 of the directive be understood as affording any valid basis for an interpretation to the effect that a given charge can be subject to a special arrangement derogating from the directive in the absence of compliance with the procedure laid down in Article 9. Moreover, according to settled case-law which goes back to the 1970s and is still applicable, the implications and legal effects of acts of the Community institutions are determined primarily by their wording, so that their validity and scope cannot be subject to limitations resulting from reservations or declarations made at the stage of the preparatory work on the act in question; it follows that the declaration relied on by the French Government cannot be regarded as a factor entitling it reasonably to believe that, despite the wording of the definitive text of Directive 69/335, it had secured a special arrangement in respect of the duty in issue. In those circumstances, the fact that the Commission did not raise the point between 1972 and 1992 was not merely insufficient to exempt the French Government from its obligations under Directive 69/335 (see point 38 above): it could not even, per se, have given rise to ‘objective, significant uncertainty’ as to the scope and extent of those obligations.

44.Lastly, the French Government seeks to justify restricting the effects in time of the Court's judgment on the questions referred for a preliminary ruling by relying on the serious repercussions on France's public finances which would arise from a decision declaring the introduction or maintenance by a Member State of a duty of the type paid by Bautiaa and SFM incompatible with Directive 69/335. According to the explanations given in that regard at the hearing, the sums paid between 1972 and 1993 by way of capital duty on ‘merger transactions’ amounted to FF 4, 500 million; to that sum there should be added the sum of FF 4, 300 million paid during the same period by way of capital duty on capitalizations of company reserves, since, according to the French Government, the legality of the latter depends on the Court's answer to the questions referred for a preliminary ruling in the present case.

45.That argument cannot be upheld. Regardless of whether it is possible, in the present case, to take into account charges paid which are unconnected with those giving rise to the proceedings pending before the national courts, and regardless of the fact that the French Government did not specify at the hearing the amount of the sums levied after 1 January 1986, constituting, in the light of the foregoing arguments, the material date in the present case, and, finally, regardless of the fact that, according to settled case-law on the limitation ratione temporis of the effects of judgments of the Court concerning the interpretation of rules of Community law, that limitation does not extend to applicants who have already raised a claim or initiated legal proceedings, so that there can in any event be no question of taking into account that part of the sums mentioned above, amounting to approximately FF 2, 000 million, which — according to the statements made by the French Government at the hearing — has already been the subject of claims or legal proceedings. In any event, the Court has recently had occasion, in its judgment in the case of Roders and Others, to point out that the financial consequences which might ensue for a government owing to the unlawfulness of a tax are not sufficient to justify limiting the effects of a judgment of the Court. In the same judgment (paragraph 48), the Court observed that, if it were otherwise, ‘the most serious infringements would receive more lenient treatment in so far as it is those infringements that are likely to have the most significant financial implications for Member States’, and that ‘furthermore, 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’.

46.In the light of that analysis, it is in my view impossible to conclude that the exceptional circumstances justifying a derogation from the rule governing the temporal effects of the Court's rulings on requests for interpretation are present. Consequently, there is in any event no need to limit the temporal effects of the judgment to be delivered on the questions referred for a preliminary ruling by the Tribunal de Grande Instance, Dax, and the Tribunal de Grande Instance, Quimper.

VII — Conclusion

In the light of the foregoing, I propose that the Court give the following answer to the questions referred for a preliminary ruling by the Tribunal de Grande Instance, Dax, and the Tribunal de Grande Instance, Quimper:

The introduction or maintenance by a Member State, after 1 January 1986, of a proportional duty on the contribution by one capital company of all of its assets to another capital company, solely in consideration of the allotment of shares in the latter company, is not compatible with Article 7(1) of Council Directive 69/335/EEC of 17 July 1969 concerning indirect taxes on the raising of capital, as replaced by Article 1(2) of Council Directive 85/303/EEC of 10 June 1985.

*1 Original language: Greek.

1 OJ, English Special Edition 1969 (II), p. 412.

2 According to the judgment of the national court, the sum paid amounted to FF 22183. Bautiaa alleges in the written observations submitted by it to the Court that that sum amounted to FF 22583.

3 Council Directive of 10 June 1985 amending Directive 69/335/EEC concerning indirect taxes on the raising of capital (OJ 1985 L 156, p. 23).

According to the judgment of the national court, that decision was dated 18 May 1992. The written observations submitted by Bautiaa to the Court of Justice state that the date in question was the date of notification of the measure, which was adopted on 27 April 1992.

*

Under Article 1(1) of Directive 85/303, such transactions, together with the other transactions listed in the same paragraph, ‘may, to the extent that they were taxed at the rate of 1% as at 1 July 1984, continue to be subject to capital duty’.

*

Directive fixing common rules of capital duty (OJ 1973 L 103, p. 15).

*

[1991] ECR I-4269. As regards the precise scope of the solution adopted by the Court in that judgment, see the subsequent judgments in Case C-338/91 Steenborst-Neerings [1993] ECR I-5475 and Case C-410/92 Johnson [1994] ECR I-5483.

*

See the judgments in Case 44/65 Hessische Knappschaft [1965] ECR 965, Case 5/72 Grassi [1972] ECR 443, paragraph 4, Case 270/81 Felicitas Rickmers-Linie [1982] ECR 2771, paragraph 9, Case 311/84 CBEM [1985] ECR 3261, paragraph 10, Case 299/84 Neumann [1985] ECR 3663, paragraphs 11 and 12, Case 247/86 Alsatel [1988] ECR 5987, paragraphs 7 and 8, Case C-337/88 SAFA [1990] ECR I-1, paragraph 20, Case C-196/89 Nespoli and Crippa [1990] ECR I-3647, paragraph 23, Case C-381/89 Sindesmos Melon tis Eleftheras Evangelikis Ekklisias and Others [1992] ECR I-2111, paragraphs 18 and 19, Joined Cases C-134/91 and C-135/91 Kemfina — Keramische und Finanz-Holding and Vioktimatiki [1992] ECR I-5699, paragraph 16, and Case C-30/93 ACATEL Electronics Vertriebs [1994] ECR I-2305, paragraphs 18 and 19. Consideration should also be given to the judgment in Case 97/85 Deutsche Lebensmittelwerke v Commission [1987] ECR 2265, paragraph 12.

*

See the judgments in Alsatel, paragraph 8, and ACATEL Electronics Vertriebs, paragraph 19, cited in the previous footnote.

*

See the judgments in Case 338/85 Pardini [1988] ECR 2041, paragraph 11, and Case C-159/90 Society for the Protection of Unborn Children Ireland [1991] ECR I-4685, paragraph 12.

*

It should be recalled that the harmonized capital duty relates to contributions to capital companies within the meaning of Article 3 of Directive 69/335. Thus the favourable provision contained in the initial version of Article 7(1)(b) of the directive clearly related to the transfer of all the assets and liabilities of one capital company to another capital company. The status of SNMTP and Bautiaa as capital companies within the meaning of the directive is not called in question in the judgment making the reference in question. It should be noted, in any event, that SNMTP is stated to be a private limited company, whereas Bautiaa is stated to be a public limited company, and that both those forms of company governed by French law are regarded as capital companies in accordance with the actual wording of the first and third indents of Article 3(1)(a) of the directive.

*

SFM is stated to be a public limited company. Having regard to the relevant express provision of Directive 69/335 mentioned in footnote 14, it therefore constitutes a capital company within the meaning of that directive. On the other hand, the judgment making the reference does not indicate that the companies taken over by SFM were capital companies. However, nothing in the contents of either that judgment or the written observations submitted to the Court is such as to justify the idea that, by reason of the nature of the companies referred to above, the transactions at issue may fall outside the scope of Directive 69/335.

*

The fact that, as the Commission rightly observes, certain terms (‘merger transactions’) which are used by the national courts to describe transactions on which tax has been levied do not appear at all in Directive 69/335 is, in my view, not significant. What is significant in the present case is the fact that the transactions at issue possess the same essential characteristics as the transactions referred to in the initial version of Article 7(1)(b) of the directive. It is pertinent, however, that certain directives adopted after Directive 69/335, governing mergers between companies, use terms to define such mergers (transfer of all the assets and liabilities of company A to company B in exchange for the issue of shares in company B to the shareholders of company A) which also appear in the aforementioned provision of Directive 69/335: see the definitions in Article 3(1) of Council Directive 78/855/EEC of 9 October 1978 based on Article 54(3)(g) of the Treaty concerning mergers of public limited liability companies (OJ 1978 L 295, p. 36) and Article 2(a) of Council Directive 90/434/EEC of 23 July 1990 on the common system of taxation applicable to mergers, divisions, transfers of assets and exchanges of shares concerning companies of different Member States (OJ 1990 L 225, p. 1).

*

It should be recalled that Article 10 of the directive prohibits, apart from capital duty, the charging of any taxes whatsoever on the transactions referred to in Article 7(1)(b) of Directive 69/335. Derogation from Article 10 is possible only in respect of the duties listed in Article 12(1) of that directive. The Court has held that list to be exhaustive (see paragraph 24 of the judgment in Ponente Carni and Cispadana Costruzioni, cited in footnote 12 above, and the judgment in Case 36/86 Investeringsforeningen Dansk Spannvest [1988] ECR 409, paragraph 9).

*

As regards the interpretation of other provisions of Directive 69/335, see paragraph 12 of the judgment in Conradsen, cited in footnote 12 above, and paragraph 14 of the judgment in Felicitas Rickmers-Linie, cited in footnote 8. See also, as to the interpretation of provisions of other directives on the harmonization of tax laws, Case C-51/76 Verbond van Nederlandse Ondernemingen [1977] ECR 113, paragraphs 10 and 11, Case C-154/80 Coöperatieve Aardappelenbewaarplaats [1981] ECR 445, paragraph 9, Case C-295/84 Rousseau Wilmot [1985] ECR 3759, paragraph 14, and Joined Cases C-93/88 and 94/88 Wisselink and Others [1989] ECR 2671, paragraph 10.

*

See in that regard the judgment in Case C-50/91 Commerz-Credit-Bank [1992] ECR I-5225, paragraph 10.

See also, finally, Case 17/81 Pabst & Richarz [1982] ECR 1331, paragraph 18, and Case 327/82 Ekro [1984] ECR 107, paragraph 11.

(<span class="note"><a id="t-ECRCJ1996ENA.0100050801-E0020" href="#c-ECRCJ1996ENA.0100050801-E0020">19</a></span>) See paragraph 30 of the judgment in Ponente Carni and Cispadana Costruzioni, cited in footnote 12 above.

(<span class="note"><a id="t-ECRCJ1996ENA.0100050801-E0021" href="#c-ECRCJ1996ENA.0100050801-E0021">20</a></span>) See paragraph 11 of the judgment in Commerz-Credit-Bank, cited in footnote 13 above, and paragraphs 22 and 23 of the judgment in Case C-164/90 Muwi-Bouwgroep [1991] ECR I-6049. Article 4(2)(a) of Directive 69/335, to which the French Government refers, concerns, on the other hand, increases in capital effected from the company's own resources (see paragraph 13 of the judgment in Investeringsforeningen Dansk Sparinvest, cited in footnote 17 above, together with the considerations set out in point 31 of the Opinion of Advocate General Jacobs in Muwi-Bouwgroep, cited immediately above).

(<span class="note"><a id="t-ECRCJ1996ENA.0100050801-E0022" href="#c-ECRCJ1996ENA.0100050801-E0022">21</a></span>) See the judgment in Muwi-Bouwgroep, cited in footnote 20 (particularly paragraph 24), in which it was held that transactions subject to a special provision of Directive 69/335 cannot be governed at the same time by another provision of that directive.

(<span class="note"><a id="t-ECRCJ1996ENA.0100050801-E0023" href="#c-ECRCJ1996ENA.0100050801-E0023">22</a></span>) According to the French Government, Article 7(4) of the text referred to in the declaration corresponded to Article 7(1) of the final version of the directive.

(<span class="note"><a id="t-ECRCJ1996ENA.0100050801-E0024" href="#c-ECRCJ1996ENA.0100050801-E0024">23</a></span>) See Case C-292/89 Antóniáén [1991] ECR I-745, paragraph 18, Case 429/85 Commission v Italy [1988] ECR 843, paragraph 9, Case 237/84 Commission v Belgium [1986] ECR 1247, paragraph 17, Case 143/83 Commission v Denmark [1985] ECR 427, paragraphs 12 and 13, and Case 38/69 Commission v Italy [1970] ECR 47, paragraph 12.

(<span class="note"><a id="t-ECRCJ1996ENA.0100050801-E0025" href="#c-ECRCJ1996ENA.0100050801-E0025">24</a></span>) It should be recalled that, according to the French Government, Article 7(4) of the text referred to in the declaration in issue corresponded to Article 7(1) of the final version.

(<span class="note"><a id="t-ECRCJ1996ENA.0100050801-E0026" href="#c-ECRCJ1996ENA.0100050801-E0026">25</a></span>) See the judgment in Joined Cases C-142/80 and 143/80 Essevi and Salengo [1981] ECR 1413. According to that judgment (paragraph 17), ‘the Commission cannot, in the attitudes which it adopts and in the opinions which it is obliged to deliver under Article 169, exempt a Member State from compliance with its obligations under the Treaty. Such assurances cannot have the effect, in particular, of precluding individuals from relying in legal proceedings on the rights conferred upon them by the Treaty in order to contest any legislative or administrative measures of a Member State which may be incompatible with Community law’.

(<span class="note"><a id="t-ECRCJ1996ENA.0100050801-E0027" href="#c-ECRCJ1996ENA.0100050801-E0027">26</a></span>) It should be noted that, as is apparent from the relevant case-law, a request for the limitation ratione temporis of the effects of a ruling of the Court on a preliminary reference may be made even at the stage of the oral procedure; see, in particular, the judgment in Joined Cases C-485/93 and C-486/93 Simitzi [1995] ECR I-2655, paragraph 29. See also the judgments in Case C-228/92 Roquette Frira [1994] ECR I-1445, paragraph 25, and the case-law referred to therein.

(<span class="note"><a id="t-ECRCJ1996ENA.0100050801-E0028" href="#c-ECRCJ1996ENA.0100050801-E0028">27</a></span>) See the judgments in Case 61/79 Denkavit Italiana [1980] ECR 1205, paragraph 16, and Joined Cases 66/79, 127/79 and 128/79 Salumi and Others [1980] ECR 1237, paragraph 9. See also the judgments in Case 811/79 Aríete [1980] ECR 2545, paragraph 6, and Case 826/79 MIRECO [1980] ECR 2559, paragraph 7, as well as those in Case 222/82 Apple and Pear Development Council [1983] ECR 4083, paragraph 38, Case 309/85 Barra [1988] ECR 355, paragraph 11, Case 210/87 Padovani and Others [1988] ECR 6177, paragraph 12, Case 269/87 Ventura [1988] ECR 6411, paragraph 15, and Case C-62/93 BP Supergas [1995] ECR I-1883, paragraph 39.

(<span class="note"><a id="t-ECRCJ1996ENA.0100050801-E0029" href="#c-ECRCJ1996ENA.0100050801-E0029">28</a></span>) See footnote 23 above.

(<span class="note"><a id="t-ECRCJ1996ENA.0100050801-E0030" href="#c-ECRCJ1996ENA.0100050801-E0030">29</a></span>) See the judgments in Case 43/75 Defrenne II [1976] ECR 455, paragraph 69 et seq., Case 69/80 Worringham and Humphreys [1981] ECR 767, paragraph 29 et seq., Joined Cases 142/80 and 143/80 Essevi and Salengo, cited in footnote 25 above, paragraph 30 et seq., Case 24/86 Blaizot [1988] ECR 379, paragraph 28 et seq., Case C-262/88 Barber, cited in footnote 26 above, paragraph 40 et seq., Case C-200/90 Dansk Denkavit and Poulsen Trading, cited in footnote 26 above, paragraph 20 et seq., Case C-163/90 Legros and Others [1992] ECR I-4625, paragraph 28 et seq., Joined Cases C-367/93 to C-377/93 Roders and Others [1995] ECR I-2229, paragraph 41 et seq., Joined Cases C-485/93 and C-486/93 Simitzi, cited in footnote 26 above, paragraph 29 et seq., and Case C-137/94 Richardson [1995] ECR I-3407, paragraph 32 et seq.

(<span class="note"><a id="t-ECRCJ1996ENA.0100050801-E0031" href="#c-ECRCJ1996ENA.0100050801-E0031">30</a></span>) As regards the temporal effects of the Court's judgments on questions referred for a preliminary ruling in relation to the validity of rules of Community law, see the judgment in Case C-228/92 Roquette Frira [1994] ECR I-1445, paragraph 25, and the case-law referred to therein.

(<span class="note"><a id="t-ECRCJ1996ENA.0100050801-E0032" href="#c-ECRCJ1996ENA.0100050801-E0032">31</a></span>) Cited in footnote 28 above. See also paragraph 37 of the judgment in Richardson, cited in the same footnote, and the judgment in Dansk Denkavit and Poulsen Trading, cited in footnote 26.