Report for the Hearing delivered in Case 112/86

I — Facts and procedure

1. It can be seen from the order for reference and from the file in the main proceedings annexed thereto that Amro Aandelen Fonds (hereinafter referred to as the Fund) is an investment fund maintained for the joint account and risk of third parties who make funds available to the Fund manager, the Amsterdam Rotterdam Bank NV (hereinafter referred to as the Manager), with a view to their investment.

2. According to the conditions under which the Fund is held and managed, its assets consist of funds that are made available for investment either in cash or in another form. In return for those funds, investors receive participations or parts thereof, which are units expressing the extent of their rights in the joint assets of the Fund. The Manager keeps a register in which the name of each participant and the number of his participations are entered. The participant receives a statement of the entry and of each amendment thereof. Participations may be transferred only to the Fund or to the direct relatives of the holder by blood or marriage and such transfers may be made only through the Manager. It is the Manager who has the power to decide on investments, the admission of participants and the exercise of the right to vote attached to securities owned by the Fund. It is required to consult the participants (in writing) only if it ceases to manage the Fund or if the latter is liquidated.

3. In May 1983, the Manager registered the issue of 5940 participations against receipts totalling HFL 1459896 and paid on behalf of the Fund HFL 14598.96 capiul duty on the amount received. The Manager submitted a complaint to the Inspecteur der Registratie en Successie, Amsterdam, seeking repayment of the amount paid. By a decision of 13 June 1984, the Inspecteur refused to grant the repayment. The Manager challenged that decision before the Revenue Chamber of the Gerechtshof on 1 August 1984, seeking its annulment and a complete repayment of the capital duty paid.

4. According to the order for reference, the main proceedings primarily concern the question whether the receiving of monies in return for the issue of participations constitutes the raising of capital in a body within the meaning of Article 32 of the Wet op belastingen van rechtsverkeer (Law on the taxation of legal transactions) of 24 December 1970 (Staatsblad, 611) (hereinafter referred to-as-the-Law). If the reply to that question is in the affirmative, the parties also disagree as to whether this is contrary to Article 3 of Council Directive 69/335/EEC.

5. Article 32 of the Law provides as follows :

6. The Gerechtshof refers to the documents on the file for a full account of the parties' arguments, which may be summarized as follows.

7. In its reference for a preliminary ruling, the Gerechtshof also puts forward its own assessment of the dispute. It points out that if the question is considered solely from the point of view of domestic law, the Fund is required to pay capital duty on the issue of the participations in question. The Gerechtshof considers that the activities of Amro Aandelen Fonds, which consist of receiving sums of money for investment and the administration thereof in an investment fund in exchange for participations as defined in the management conditions, must be regarded as the raising of share capital. The Fund itself is a fund established on the territory of the Kingdom.

8. The Gerechtshof considers that an interpretation of the term company in Article 3 (2) of the directive is necessary in order to give judgment in the case before it. It has therefore stayed proceedings and requested the Court of Justice to give a preliminary ruling on the following question:

II — Written observations

1. The Commission considers that Article 3 (2) of Directive 69/335 leaves Member States a certain discretion to specify what other companies, firms, associations or legal persons operating for profit will be assimilated to capital companies for the purposes of implementing the directive other than those compulsorily subject to its provisions under Article 3 (1). However, having regard to the diversity in the legal structure of companies, firms, associations and legal persons which may be assimilated to capital companies, it is necessary to consider in each case whether their legal structure, as determined both by the applicable national provisions and the terms of their statutes, make it possible to assimilate them to capital companies.

2. The Netherlands Government considers that in the absence of a precise definition of the term company in Article 3 (2) of the directive, reference must be made to that contained in Article 58 of the EEC Treaty, which provides that companies or firms means companies or firms constituted under civil or commercial law, including cooperative societies, and other legal persons governed by public or private law, save for those which are non-profit-making.

III — Replies to the question put by the Court

The Court called upon the Commission to provide it with information on the following point:

According to the Commission's reply, Belgium, France, Italy, Luxembourg, the Federal Republic of Germany and the United Kingdom do not assimilate investment funds to capital companies. In Denmark, joint investment funds are subject to capital duty only in respect of their securities officially quoted on the stock exchange. Spain, Greece and Portugal have not yet transposed into internal law the Community provisions concerning capital duty.

IV — Oral procedure

At the hearing on 19 May 1987 oral observations were presented by the plaintiff in the main proceedings which had not lodged any written observations. It expounded on the arguments it had put forward before the Gerechtshof stressing in particular the differences between a commercial company and Amro Aandelen Fonds and the fact that it does not have legal personality; it stated that the tax imposed by the Netherlands was discriminatory and contrary to the aim of harmonization which underlies Directive 69/335 in so far as no such taxation exists in the other Member States.

The Commission stated that, having closely examined the statutes of the Amro Aandelen Fonds, it had concluded that there was nothing in Directive 69/335 to preclude a Member State from treating an association such as the Amro Aandelen Fonds as a capital company within the meaning of Article 3 (2) of the directive.

Consequently the Commission considers that it is in accordance with the provisions of the directive for capital duty to be charged on the value of the payments made by the participants to Amro Aandelen Fonds in return for certificates setting out the extent of their rights in the joint property of the Fund.

1 Language of the Case: Dutch.