Case C‑139/12

Caixa d’Estalvis i Pensions de Barcelona

v

Generalidad de Cataluña

(Request for a preliminary ruling from the Tribunal Supremo)

‛Reference 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’

Summary — Judgment of the Court (Tenth Chamber), 20 March 2014

1. Harmonisation of fiscal legislation — Common system of value added tax — Prohibition on the levying of other domestic taxes which can be characterised as turnover taxes — Concept of ‘Turnover taxes’ — Scope — Tax on capital transfers and documented legal acts — Lawfulness

   (Council Directives 77/388 and 91/680)

2. Questions referred for a preliminary ruling — Jurisdiction of the Court — Limits — Clearly irrelevant questions and hypothetical questions put in a context not permitting a useful answer — Questions bearing no relation to the subject matter of the case in the main proceedings

   (Art. 267 TFEU)

3. Questions referred for a preliminary ruling — Jurisdiction of the Court — Limits — Question raised regarding a dispute within a single Member State — Inclusion in the light of the fact that EU law provisions rendered applicable due to a reference made to them by domestic law or by reason of a prohibition on discrimination laid down by that national law

   (Art. 267 TFEU)

1.  Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes, as amended by Directive 91/680, must be interpreted as not precluding a national provision which makes the acquisition of the majority of the capital of a company, the assets of which essentially comprise immovable property, subject to an indirect tax other than value added tax.

   The Court has already ruled on the compatibility of that legislation with Article 33(1) of the Sixth Directive in the case which gave rise to the order of 27 November 2008 in Case C‑151/08 Renta. In that regard, the Court found in that order that a tax with characteristics such as those of the tax on capital transfers differs from value added tax in such a way that it cannot be characterised as a turnover tax within the meaning of Article 33(1) of the Sixth Directive.

   Moreover, since EU law permits concurrent systems of taxation, it thus allows such a tax to be levied even where the charging of such a tax on a transaction which is already subject to value added tax may result in the double taxation of that transaction.

   (see paras 28, 29, 31, operative part)

2.  See the text of the decision.

   (see paras 33-36)

3.  While, in view of the division of responsibilities in the preliminary-ruling procedure, it is for the referring court alone to determine the subject-matter of the questions which it proposes to refer to the Court, it is for the Court to examine the conditions under which the case was referred to it by the national court, in order to assess whether it has jurisdiction. In this regard, the Court does not have jurisdiction to reply to a question referred for a preliminary ruling where it is obvious that the provision of EU law referred to the Court for interpretation is incapable of applying.

   As regards the provisions of the TFEU in relation to the freedom of establishment and free movement of capital, those provisions do not apply to a situation all aspects of which are confined within a single Member State.

   Nevertheless, in certain very specific conditions, the purely internal nature of the situation concerned will not prevent the Court from answering a question referred pursuant to Article 267 TFEU. That may be the case, in particular, if national law requires the referring court to grant the same rights to a national of the Member State of that court as those which a national of another Member State in the same situation would derive from EU law or where the request for a preliminary ruling concerns provisions of EU law to which the national law of a Member State refers in order to determine the rules applicable to a situation which is purely internal to that Member State.

   (see paras 40-44)