11.12.2017

Official Journal of the European Union

C 424/13

(Case C-573/16) (<span class="super note-tag">1</span>)

((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))

(2017/C 424/17)

Language of the case: English

Referring court

Parties to the main proceedings

Applicant: Air Berlin plc

Defendant: Commissioners for Her Majesty’s Revenue and Customs

Operative part of the judgment

1.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.

2.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.

3.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.

(<span class="super">1</span>) OJ C 22, 23.1.2017.