{ "attribution": { "source": "legal.exploreworldai.com", "canonical": "https://legal.exploreworldai.com/api/public/v1/judgment-text?id=eu:c-197-25", "cite_as": "NovaCopilot, legal.exploreworldai.com (https://legal.exploreworldai.com/api/public/v1/judgment-text?id=eu:c-197-25)", "license": "https://legal.exploreworldai.com/revision", "version": "legal-2026-10-09", "fingerprint": "ewai:eu:af38ec", "proof": "sha256:a08a277f0f09772f153c39b1d678204c7a5d099c854c1babc6671dd87603841a", "jurisdiction": "eu", "lang": "en", "publisher": "NovaCopilot by ExploreWorld Legal", "terms": "https://legal.exploreworldai.com/om" }, "brand_source": "Source: NovaCopilot", "item": { "schema_version": "1.0.0", "id": "eu:c-197-25", "jurisdiction": "eu", "lang": "en", "brand_source": "Source: NovaCopilot", "brand": { "product": "NovaCopilot", "platform": "ExploreWorldAI", "infrastructure": "ExploreWorld Legal", "infrastructure_url": "legal.exploreworldai.com", "legal_entity": "Valkiv Ventures AB", "permanent_url": "https://legal.exploreworldai.com/novacopilot", "source": "Source: NovaCopilot", "powered_by": "Powered by NovaCopilot", "license": "https://legal.exploreworldai.com/licensvillkor" }, "sections": [ { "title": "Front matter", "paragraphs": [ "para_1", "para_2", "para_3", "para_4", "para_5", "para_6", "para_7", "para_8", "para_9", "para_10", "para_11", "para_12", "para_13", "para_14", "para_15", "para_16", "para_17", "para_18", "para_19", "para_20", "para_21", "para_22", "para_23" ], "kind": "front_matter" }, { "title": "Judgment", "paragraphs": [ "para_24", "para_25", "para_26" ], "kind": "assessment" }, { "title": "Legal context", "paragraphs": [ "para_27" ], "kind": "legal_framework" }, { "title": "European Union law", "paragraphs": [ "para_28", "para_29", "para_30", "para_31", "para_32", "para_33", "para_34", "para_35", "para_36", "para_37", "para_38", "para_39", "para_40", "para_41", "para_42", "para_43", "para_44", "para_45", "para_46", "para_47", "para_48", "para_49", "para_50", "para_51", "para_52", "para_53", "para_54", "para_55", "para_56", "para_57", "para_58", "para_59", "para_60", "para_61", "para_62", "para_63", "para_64", "para_65", "para_66", "para_67", "para_68", "para_69", "para_70", "para_71", "para_72", "para_73", "para_74", "para_75", "para_76", "para_77", "para_78", "para_79", "para_80", "para_81", "para_82", "para_83", "para_84", "para_85", "para_86", "para_87", "para_88", "para_89", "para_90", "para_91", "para_92", "para_93", "para_94" ], "kind": "legal_framework" }, { "title": "Polish law", "paragraphs": [ "para_95", "para_96", "para_97", "para_98", "para_99", "para_100", "para_101", "para_102", "para_103", "para_104", "para_105", "para_106", "para_107", "para_108", "para_109", "para_110", "para_111", "para_112", "para_113", "para_114", "para_115", "para_116", "para_117", "para_118", "para_119", "para_120", "para_121", "para_122", "para_123", "para_124", "para_125", "para_126", "para_127", "para_128", "para_129" ], "kind": "legal_framework" }, { "title": "The dispute in the main proceedings and the question referred for a preliminary ruling", "paragraphs": [ "para_130", "para_131", "para_132", "para_133", "para_134", "para_135", "para_136", "para_137", "para_138", "para_139", "para_140" ], "kind": "facts" }, { "title": "Consideration of the question referred", "paragraphs": [ "para_141", "para_142", "para_143", "para_144", "para_145", "para_146", "para_147", "para_148", "para_149", "para_150", "para_151", "para_152", "para_153", "para_154", "para_155", "para_156", "para_157" ], "kind": "questions" }, { "title": "Costs", "paragraphs": [ "para_158", "para_159" ], "kind": "costs" }, { "title": "On those grounds, the Court (Third Chamber) hereby rules:", "paragraphs": [ "para_160", "para_161", "para_162", "para_163", "para_164" ], "kind": "operative" } ], "paragraphs": [ { "text": "Provisional text", "paragraph_id": "para_1" }, { "text": "JUDGMENT OF THE COURT (Third Chamber)", "paragraph_id": "para_2" }, { "text": "17 September 2026 ( * )", "paragraph_id": "para_3" }, { "text": "( Reference for a preliminary ruling – Taxation – Directive 2008/7/EC – Indirect taxes on the raising of capital – Conversion of a partnership operating for profit into another partnership operating for profit – Article 2(2) – Certain entities deemed to be capital companies – Article 9 – Option for Member States to derogate from regarding certain entities as equivalent to capital companies – Scope – Article 5(1)(a) and Article 7(1) – Concept of ‘capital duty’ – Article 3 – Presence of a contribution of capital )", "paragraph_id": "para_4" }, { "text": "In Case C‑197/25,", "paragraph_id": "para_5" }, { "text": "REQUEST for a preliminary ruling under Article 267 TFEU from the Naczelny Sąd Administracyjny (Supreme Administrative Court, Poland), made by decision of 3 February 2025, received at the Court on 11 March 2025, in the proceedings", "paragraph_id": "para_6" }, { "text": "A. sp. z o.o.", "paragraph_id": "para_7" }, { "text": "v", "paragraph_id": "para_8" }, { "text": "Dyrektor Izby Administracji Skarbowej w Zielonej Górze,", "paragraph_id": "para_9" }, { "text": "interested parties:", "paragraph_id": "para_10" }, { "text": "Rzecznik Małych i Średnich Przedsiębiorców,", "paragraph_id": "para_11" }, { "text": "Prokurator Krajowy,", "paragraph_id": "para_12" }, { "text": "THE COURT (Third Chamber),", "paragraph_id": "para_13" }, { "text": "composed of C. Lycourgos (Rapporteur), President of the Chamber, O. Spineanu-Matei, S. Rodin, N. Piçarra and N. Fenger, Judges,", "paragraph_id": "para_14" }, { "text": "Advocate General: A. Biondi,", "paragraph_id": "para_15" }, { "text": "Registrar: M. Siekierzyńska, Administrator,", "paragraph_id": "para_16" }, { "text": "having regard to the written procedure and further to the hearing on 29 January 2026,", "paragraph_id": "para_17" }, { "text": "after considering the observations submitted on behalf of:", "paragraph_id": "para_18" }, { "text": "–        Rzecznik Małych i Średnich Przedsiębiorców, by K. Kazulo-Borkowska and M. Langer, radcowie prawni,", "paragraph_id": "para_19" }, { "text": "–        the Polish Government, by B. Majczyna and A. Kramarczyk-Szaładzińska, acting as Agents, and by K. Sokołowska-Wicińska, acting as expert,", "paragraph_id": "para_20" }, { "text": "–        the European Commission, by K. Herrmann and W. Roels, acting as Agents,", "paragraph_id": "para_21" }, { "text": "after hearing the Opinion of the Advocate General at the sitting on 23 April 2026,", "paragraph_id": "para_22" }, { "text": "gives the following", "paragraph_id": "para_23" }, { "text": "Judgment", "paragraph_id": "para_24" }, { "text": "1         This request for a preliminary ruling concerns the interpretation of 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).", "paragraph_id": "para_25" }, { "text": "2         The request has been made in proceedings between A. sp. z o.o., a company governed by Polish law, and the Dyrektor Izby Administracji Skarbowej w Zielonej Górze (Director of the Tax Administration Chamber, Zielona Góra, Poland) (‘the tax authority’), concerning the levying of an indirect tax on the conversion of a limited partnership under Polish law ( spółka komandytowa ) into a general partnership under Polish law ( spółka jawna ).", "paragraph_id": "para_26" }, { "text": "Legal context", "paragraph_id": "para_27" }, { "text": "European Union law", "paragraph_id": "para_28" }, { "text": "3         Recitals 2 to 6 and 8 of Directive 2008/7 state:", "paragraph_id": "para_29" }, { "text": "‘(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 … give rise to discrimination, double taxation and disparities which interfere with the free movement of capital. …", "paragraph_id": "para_30" }, { "text": "(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.", "paragraph_id": "para_31" }, { "text": "(4)      The economic effects of capital duty are detrimental to the regrouping and development of undertakings. …", "paragraph_id": "para_32" }, { "text": "(5)      The best solution for attaining these objectives would be to abolish capital duty.", "paragraph_id": "para_33" }, { "text": "(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.", "paragraph_id": "para_34" }, { "text": "…", "paragraph_id": "para_35" }, { "text": "(8)      It is appropriate to maintain strict conditions for situations where Member States continue to levy capital duty, in particular as regards exemptions and reductions.’", "paragraph_id": "para_36" }, { "text": "4         Chapter I of that directive, entitled ‘Subject matter and scope’, includes Article 1 of that directive, entitled ‘Subject matter’, which provides:", "paragraph_id": "para_37" }, { "text": "‘This Directive regulates the levying of indirect taxes in respect of the following:", "paragraph_id": "para_38" }, { "text": "(a)      contributions of capital to capital companies;", "paragraph_id": "para_39" }, { "text": "(b)      restructuring operations involving capital companies;", "paragraph_id": "para_40" }, { "text": "(c)      the issue of certain securities and debentures.’", "paragraph_id": "para_41" }, { "text": "5         Article 2 of that directive, entitled ‘Capital company’, also falls within Chapter I thereof and provides:", "paragraph_id": "para_42" }, { "text": "‘1.      For the purposes of this Directive “capital company” means:", "paragraph_id": "para_43" }, { "text": "(a)      any company which takes one of the forms listed in Annex I;", "paragraph_id": "para_44" }, { "text": "(b)      any company, firm, association or legal person the shares in whose capital or assets can be dealt in on a stock exchange;", "paragraph_id": "para_45" }, { "text": "(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.", "paragraph_id": "para_46" }, { "text": "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.’", "paragraph_id": "para_47" }, { "text": "6         Article 3 of Directive 2008/7, entitled ‘Contributions of capital’, also forms part of Chapter I thereof and provides:", "paragraph_id": "para_48" }, { "text": "‘For the purposes of this Directive and subject to Article 4, the following transactions shall be considered to be “contributions of capital”:", "paragraph_id": "para_49" }, { "text": "(a)      the formation of a capital company;", "paragraph_id": "para_50" }, { "text": "(b)      the conversion into a capital company of a company, firm, association or legal person which is not a capital company;", "paragraph_id": "para_51" }, { "text": "(c)      an increase in the capital of a capital company by contribution of assets of any kind;", "paragraph_id": "para_52" }, { "text": "(d)      an increase in the assets of a capital company by contribution of assets of any kind, in consideration not of shares in the capital or assets of the company, but of rights of the same kind as those of members, such as voting rights, a share in the profits or a share in the surplus upon liquidation;", "paragraph_id": "para_53" }, { "text": "(e)      the transfer from a third country to a Member State of the centre of effective management of a capital company whose registered office is in a third country;", "paragraph_id": "para_54" }, { "text": "(f)      the transfer from a third country to a Member State of the registered office of a capital company whose centre of effective management is in a third country;", "paragraph_id": "para_55" }, { "text": "(g)      an increase in the capital of a capital company by capitalisation of profits or of permanent or temporary reserves;", "paragraph_id": "para_56" }, { "text": "(h)      an increase in the assets of a capital company through the provision of services by a member which does not entail an increase in the company’s capital, but which does result in a variation in the rights in the company or which may increase the value of the company’s shares;", "paragraph_id": "para_57" }, { "text": "(i)      a loan taken up by a capital company, if the creditor is entitled to a share in the profits of the company;", "paragraph_id": "para_58" }, { "text": "(j)      a loan taken up by a capital company with a member or a member’s spouse or child, or a loan taken up with a third party, if it is guaranteed by a member, on condition that such loans have the same function as an increase in the company’s capital.’", "paragraph_id": "para_59" }, { "text": "7         Article 4 of that directive, entitled ‘Restructuring operations’, also appears in Chapter I thereof and provides:", "paragraph_id": "para_60" }, { "text": "‘1.      For the purposes of this Directive, the following restructuring operations shall not be considered to be contributions of capital:", "paragraph_id": "para_61" }, { "text": "(a)      the transfer by one or more capital companies of all their assets and liabilities, or one or more branches of activity to one or more capital companies which are in the process of being formed or which are already in existence, provided that the consideration for the transfer consists at least in part of securities representing the capital of the acquiring company;", "paragraph_id": "para_62" }, { "text": "(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.", "paragraph_id": "para_63" }, { "text": "2.      Restructuring operations shall also include the transfer to a capital company of all assets and liabilities of another capital company which is wholly owned by the former company.’", "paragraph_id": "para_64" }, { "text": "8         Chapter II of that directive, entitled ‘General provisions’, includes Article 5 thereof, entitled ‘Transactions not subject to indirect tax’, whose paragraph 1 is worded as follows:", "paragraph_id": "para_65" }, { "text": "‘Member States shall not subject capital companies to any form of indirect tax whatsoever in respect of the following:", "paragraph_id": "para_66" }, { "text": "(a)      contributions of capital;", "paragraph_id": "para_67" }, { "text": "(b)      loans, or the provision of services, occurring as part of contributions of capital;", "paragraph_id": "para_68" }, { "text": "(c)      registration or any other formality required before the commencement of business to which a capital company may be subject by reason of its legal form;", "paragraph_id": "para_69" }, { "text": "(d)      alteration of the constituent instrument or regulations of a capital company, and in particular the following:", "paragraph_id": "para_70" }, { "text": "(i)      the conversion of a capital company into a different type of capital company;", "paragraph_id": "para_71" }, { "text": "(ii)      the transfer from a Member State to another Member State of the centre of effective management or of the registered office of a capital company;", "paragraph_id": "para_72" }, { "text": "(iii)      a change in the objects of a capital company;", "paragraph_id": "para_73" }, { "text": "(iv)      the extension of the period of existence of a capital company;", "paragraph_id": "para_74" }, { "text": "(e)      the restructuring operations referred to in Article 4.’", "paragraph_id": "para_75" }, { "text": "9         Article 6 of that directive, entitled ‘Duties and value added tax’, also appears in Chapter II of the directive, and provides, in paragraph 1 thereof:", "paragraph_id": "para_76" }, { "text": "‘Notwithstanding Article 5, Member States may charge the following duties and taxes:", "paragraph_id": "para_77" }, { "text": "(a)      duties on the transfer of securities, whether charged at a flat rate or not;", "paragraph_id": "para_78" }, { "text": "(b)      transfer duties, including land registration taxes, on the transfer, to a capital company, of businesses or immovable property situated within their territory;", "paragraph_id": "para_79" }, { "text": "(c)      transfer duties on assets of any kind transferred to a capital company, in so far as such property is transferred for a consideration other than shares in the company;", "paragraph_id": "para_80" }, { "text": "(d)      duties on the creation, registration or discharge of mortgages or other charges on land or other property;", "paragraph_id": "para_81" }, { "text": "(e)      duties in the form of fees or dues;", "paragraph_id": "para_82" }, { "text": "(f)      value added tax.’", "paragraph_id": "para_83" }, { "text": "10       Chapter III of Directive 2008/7, entitled ‘Special provisions’, contains Article 7 thereof, entitled ‘Levying of capital duty in certain Member States’, which provides, in paragraph 1 thereof:", "paragraph_id": "para_84" }, { "text": "‘Notwithstanding Article 5(1)(a), a Member State which as at 1 January 2006 charged a duty on contributions of capital to capital companies, hereinafter “capital duty”, may continue to do so provided that it complies with Articles 8 to 14.’", "paragraph_id": "para_85" }, { "text": "11       Article 9 of that directive, entitled ‘Exclusion of certain entities from the scope of application’, also falls within Chapter III thereof and provides:", "paragraph_id": "para_86" }, { "text": "‘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).’", "paragraph_id": "para_87" }, { "text": "12       Annex I to that directive, entitled ‘List of companies referred to in Article 2(1)(a)’, is worded as follows:", "paragraph_id": "para_88" }, { "text": "‘(1)      Companies incorporated under Council Regulation (EC) No 2157/2001 of 8 October 2001 on the Statute for a European company (SE) [(OJ 2001 L 294, p. 1)];", "paragraph_id": "para_89" }, { "text": "…", "paragraph_id": "para_90" }, { "text": "(21)      companies under Polish law known as:", "paragraph_id": "para_91" }, { "text": "(i)      spółka akcyjna", "paragraph_id": "para_92" }, { "text": "(ii)      spółka z ograniczoną odpowiedzialnością", "paragraph_id": "para_93" }, { "text": "…’", "paragraph_id": "para_94" }, { "text": "Polish law", "paragraph_id": "para_95" }, { "text": "13       Article 1 of the ustawa o podatku od czynności cywilnoprawnych (Law on the taxation of civil-law transactions) of 9 September 2000, in the version applicable to the dispute in the main proceedings (‘the PCC Law’), provides:", "paragraph_id": "para_96" }, { "text": "‘1.      Tax shall be chargeable on:", "paragraph_id": "para_97" }, { "text": "(1)      the following civil-law transactions:", "paragraph_id": "para_98" }, { "text": "…", "paragraph_id": "para_99" }, { "text": "(k)      the foundational documents of a company or partnership;", "paragraph_id": "para_100" }, { "text": "(2)      amendments to the documents referred to in subparagraph 1, if they give rise to an increase in the basis of assessment for the tax on civil-law transactions …", "paragraph_id": "para_101" }, { "text": "…", "paragraph_id": "para_102" }, { "text": "3.      In the case of a foundational document of a company or partnership, the following shall be considered to be an amendment to the document:", "paragraph_id": "para_103" }, { "text": "(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 partner, additional payments, or transfers by a partner to the partnership of property or property rights for use free of charge;", "paragraph_id": "para_104" }, { "text": "(2)      in the case of a capital company: an increase in the share capital by means of contributions or capitalisation of the company’s reserves, as well as additional payments.", "paragraph_id": "para_105" }, { "text": "(3)      the conversion of partnerships or companies or the merger of companies, if they result in an increase in the assets of the partnership or an increase in the share capital of the capital company;", "paragraph_id": "para_106" }, { "text": "…’", "paragraph_id": "para_107" }, { "text": "14       Article 1a of the PCC Law provides:", "paragraph_id": "para_108" }, { "text": "‘For the purposes of this Law, the following terms shall mean as follows:", "paragraph_id": "para_109" }, { "text": "(1)      partnership: a civil-law partnership [ spółka cywilna ], a general partnership [ spółka jawna ], a professional partnership [ spółka partnerska ], a limited partnership [ spółka komandytowa ], or a partnership limited by shares [ spółka komandytowo-akcyjna ];", "paragraph_id": "para_110" }, { "text": "(2)      capital company: a limited liability company [ spółka z ograniczoną odpowiedzialnością ], a public limited company [ spółka akcyjna ], or a European company [ spółka europejska ];", "paragraph_id": "para_111" }, { "text": "…’", "paragraph_id": "para_112" }, { "text": "15       Article 2 of the PCC Law states:", "paragraph_id": "para_113" }, { "text": "‘Tax is not chargeable on:", "paragraph_id": "para_114" }, { "text": "…", "paragraph_id": "para_115" }, { "text": "(6)      the foundational documents of a company or partnership and amendments to them in connection with:", "paragraph_id": "para_116" }, { "text": "(a)      mergers of capital companies,", "paragraph_id": "para_117" }, { "text": "(b)      the conversion of a capital company into a different capital company;", "paragraph_id": "para_118" }, { "text": "(c)      a contribution to a capital company, in return for shares in it, of:", "paragraph_id": "para_119" }, { "text": "–        the business of a capital company or of an establishment of that company,", "paragraph_id": "para_120" }, { "text": "–        shares in another capital company representing a majority of the voting rights in that company, or further shares in cases where the company to which the shares are contributed already holds a voting majority.", "paragraph_id": "para_121" }, { "text": "…’", "paragraph_id": "para_122" }, { "text": "16       Under Article 6(1) of the PCC Law:", "paragraph_id": "para_123" }, { "text": "‘The basis of assessment shall be:", "paragraph_id": "para_124" }, { "text": "…", "paragraph_id": "para_125" }, { "text": "(8)      in the case of the foundational documents of a company or partnership:", "paragraph_id": "para_126" }, { "text": "…", "paragraph_id": "para_127" }, { "text": "(f)      in the event of a conversion of partnerships or companies or a merger of companies: the value of the contributions to the partnership that has been established as a result of the conversion or the value of the share capital of the capital company that has been established as a result of the conversion or merger,", "paragraph_id": "para_128" }, { "text": "…’", "paragraph_id": "para_129" }, { "text": "The dispute in the main proceedings and the question referred for a preliminary ruling", "paragraph_id": "para_130" }, { "text": "17       On 9 July 2021, an entity governed by Polish law, the legal form of which was changed from a limited partnership to a general partnership, applied to the tax authority for a refund of overpaid tax on civil-law transactions, in which that conversion was alleged to have resulted. According to that entity, that conversion was incorrectly subjected to that tax, since that authority had erred in considering that there was an ‘increase in the assets of the partnership’ within the meaning of Article 1(3)(3) of the PCC Law.", "paragraph_id": "para_131" }, { "text": "18       By decision of 18 March 2022, the tax authority rejected that application on the ground that the amendment to the foundational document had led to such an increase in assets.", "paragraph_id": "para_132" }, { "text": "19       That entity brought an action against that decision before the Wojewódzki Sąd Administracyjny w Gorzowie Wielkopolskim (Provincial Administrative Court, Gorzów Wielkopolski, Poland). By judgment of 7 July 2022, that court dismissed that action, since the tax authority’s assessment had been, in its view, correct.", "paragraph_id": "para_133" }, { "text": "20       The entity concerned, which had in the meantime become a limited liability company, brought an appeal on a point of law before the Naczelny Sąd Administracyjny (Supreme Administrative Court, Poland), which is the referring court.", "paragraph_id": "para_134" }, { "text": "21       According to the referring court, it is apparent from the notarial deed relating to the conversion at issue before it that the contributions to the general partnership resulting from that conversion were set in the same amount as the contributions which had previously been made to the limited partnership that was converted. Since the partners’ contributions thus did not change and the partners also did not make any further contributions in cash or in kind on the date of that conversion, the question arises as to whether, in such circumstances, there is nevertheless an ‘increase in the assets of the partnership’ within the meaning of Article 1(3)(3) of the PCC Law.", "paragraph_id": "para_135" }, { "text": "22       According to the referring court, it is necessary, in particular, to examine whether the assets acquired by the limited partnership before the conversion at issue in the main proceedings represent, merely because they became part of the assets of the general partnership, ‘contributions to the partnership that has been established as a result of the conversion’ within the meaning of Article 6(1)(8)(f) of the PCC Law, and thus reflect an ‘increase in the assets’ within the meaning of Article 1(3)(3) of the PCC Law.", "paragraph_id": "para_136" }, { "text": "23       The referring court considers that that question must be resolved by taking into account Directive 2008/7. That court does not rule out the possibility that the Republic of Poland may be required, under Article 5(1)(d)(i) of that directive, not to subject to any form of indirect tax whatsoever the conversion of a limited partnership into a general partnership. In that case, the provisions of the PCC Law on which the tax authority relies should, because of the primacy of EU law, be disapplied.", "paragraph_id": "para_137" }, { "text": "24       Since Article 5(1)(d)(i) of Directive 2008/7 prohibits any form of indirect tax whatsoever on the ‘conversion of a capital company into a different type of capital company’, and since any company, firm, association or legal person not referred to in Article 2(1) of that directive must, when operating for profit, be deemed to be a capital company under Article 2(2) of that directive, the referring court is uncertain whether the tax authority could nevertheless subject the conversion at issue before it to tax on civil-law transactions in the light of the exercise, by the Republic of Poland, of the option provided for in Article 9 of that directive, which authorises Member States not to regard as capital companies the entities operating for profit referred to in Article 2(2).", "paragraph_id": "para_138" }, { "text": "25       In those circumstances the Naczelny Sąd Administracyjny (Supreme Administrative Court) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:", "paragraph_id": "para_139" }, { "text": "‘Must Article 9 of [Directive 2008/7] which allows a Member State to choose not to recognise entities operating for profit referred to in Article 2(2) of the directive, such as general partnerships, as capital companies be interpreted to mean that that Member State is also free to choose whether or not to levy capital duty on such entities?’", "paragraph_id": "para_140" }, { "text": "Consideration of the question referred", "paragraph_id": "para_141" }, { "text": "26       As is apparent from the explanations provided in the request for a preliminary ruling, the referring court wishes to know whether the exercise by the Republic of Poland of the option provided for in Article 9 of Directive 2008/7 allows that Member State to levy an indirect tax, such as the tax on civil-law transactions provided for by the PCC Law, on the conversion of an entity operating for profit that is not referred to in Article 2(1) of Directive 2008/7 into another entity operating for profit that is also not referred to in that provision.", "paragraph_id": "para_142" }, { "text": "27       The reference for a preliminary ruling thus starts from the premiss, first, that the Republic of Poland has made use of the option provided for in Article 9 of Directive 2008/7, and second, that the entities concerned by the conversion at issue in the main proceedings, namely a limited partnership under Polish law ( spółka komandytowa ) and a general partnership under Polish law ( spółka jawna ), operate for profit. As regards the general partnership, its classification as an entity operating for profit is referred to in the question referred for a preliminary ruling. As regards the limited partnership, the Polish Government confirmed at the hearing before the Court that, in principle, partnerships of that kind also operate for profit.", "paragraph_id": "para_143" }, { "text": "28       It is not for the Court of Justice to verify those premisses, which it is for the referring court alone to confirm or refute.", "paragraph_id": "para_144" }, { "text": "29       In the light of that preliminary observation, it should be noted that, by its question, the referring court asks, in essence, whether Article 9 of Directive 2008/7 must be interpreted as meaning that the exercise, by a Member State, of the option provided for in Article 9 allows that Member State to levy an indirect tax on the conversion of an entity operating for profit that is not referred to in Article 2(1) of that directive into another entity operating for profit that is also not referred to in that provision.", "paragraph_id": "para_145" }, { "text": "30       In order to answer the question thus reformulated, it must be recalled that Directive 2008/7 provided for complete harmonisation of the cases in which the Member States may levy indirect taxes on the raising of capital. As follows from recitals 2 to 4 of that directive, that harmonisation is intended to eliminate, as far as possible, factors which may distort conditions of competition or hinder the free movement of capital, with a view to ensuring the smooth functioning of the internal market. Full realisation of that objective presupposes that the raising of capital is burdened by indirect taxes only on the strict conditions laid down by the EU legislature (judgment of 4 June 2026, Nova Iberomoldes , C‑837/24, EU:C:2026:445, paragraphs 24 to 26 and the case-law cited).", "paragraph_id": "para_146" }, { "text": "31       That harmonisation consists, as is clear from Article 1 of that directive, in regulating the levying of indirect taxes in respect of contributions of capital to capital companies, restructuring operations involving capital companies, and the issue of certain securities and debentures. Articles 3 and 4 of that directive help distinguish the scope of those categories, as Article 3 lists the types of transactions which constitute a contribution to a capital company, known as a ‘contribution of capital’, and Article 4 lists the types of ‘restructuring operations’ which are not considered to be a contribution of capital.", "paragraph_id": "para_147" }, { "text": "32       The concept of ‘capital company’ is defined in Article 2 of Directive 2008/7. Article 2(1) lists the types of companies, firms, associations or legal persons which, by their nature, are covered by that concept, while Article 2(2) thereof adds that any other company, firm, association or legal person operating for profit is to be ‘deemed to be’ a capital company for the purposes of that directive. The objective of that equivalence is to prevent the choice of a particular legal form from resulting in the different fiscal treatment of transactions which, from an economic point of view, are equivalent (see, to that effect, judgment of 22 April 2015, Drukarnia Multipress , C‑357/13, EU:C:2015:253, paragraph 26 and the case-law cited).", "paragraph_id": "para_148" }, { "text": "33       Indirect taxes on ‘contributions of capital’ to ‘capital companies’ are, as follows from recital 2 of Directive 2008/7, designated by the words ‘capital duty’. The levying of capital duty, namely the indirect tax on contributions of capital to capital companies, is, subject to what is provided for in Article 6 of that directive, prohibited by Article 5(1)(a) thereof; an exception, however, is laid down in Article 7(1) of that directive for Member States which levied capital duty on 1 January 2006. Those Member States may continue to levy such a duty, provided that they comply with Articles 8 to 14 of that directive.", "paragraph_id": "para_149" }, { "text": "34       In the light of its detrimental economic effects, which are referred to in recital 4 of Directive 2008/7, the levying of capital duty by the Member States that is referred to in Article 7(1) of that directive is, as stated in recital 8 of that directive, strictly circumscribed, in particular as regards exemptions and reductions. By contrast, the prohibition on indirect taxation referred to in Article 5 of that directive must be interpreted broadly (see, to that effect, judgment of 5 June 2025, Corner and Border , C‑685/23, EU:C:2025:398, paragraph 30 and the case-law cited).", "paragraph_id": "para_150" }, { "text": "35       Article 9 of Directive 2008/7, whose interpretation is sought, is thus one of the provisions which circumscribe the manner in which a Member State may, provided that it is one of the Member States referred to in Article 7(1) of that directive, continue to levy capital duty. Article 9 allows such a Member State to consider, for the purposes of levying capital duty, that companies, firms, associations or legal persons operating for profit that are not referred to in Article 2(1) of that directive are not covered by the concept of ‘capital company’, notwithstanding the rule laid down in Article 2(2) of that directive, according to which those entities are to be deemed to be a ‘capital company’.", "paragraph_id": "para_151" }, { "text": "36       In the light, first, of the use, in Article 9 of Directive 2008/7, of the words ‘for the purposes of levying capital duty’, second, of the fact that Article 9 appears in Chapter III of that directive, which is devoted exclusively to the levying of capital duty by the Member States referred to in Article 7(1) of that directive, and third, of the purpose of that chapter, which is to provide a strict framework for such levying, the option to derogate from Article 2(2) of that directive provided for in Article 9 cannot, as the Advocate General observed in points 24 and 29 to 34 of his Opinion, be interpreted as meaning that Member States may derogate from Article 2(2) of the directive in respect of indirect taxes other than capital duty.", "paragraph_id": "para_152" }, { "text": "37       It follows that Article 9 of Directive 2008/7 has no effect on the rules of that directive which are unrelated to capital duty, that is to say, to the indirect tax levied on contributions of capital, referred to in Article 5(1)(a) of that directive, read in conjunction with Article 7(1) thereof.", "paragraph_id": "para_153" }, { "text": "38       Accordingly, a conversion, not accompanied by a contribution of capital, of an entity operating for profit that is not referred to in Article 2(1) of Directive 2008/7 into another entity operating for profit that is also not referred to in that provision constitutes a ‘conversion of a capital company into a different type of capital company’, within the meaning of Article 5(1)(d)(i) of that directive, owing to the fact that companies, firms, associations or legal persons operating for profit are regarded, under Article 2(2) of that directive, as equivalent to capital companies. In that situation, which is characterised by the absence of a contribution of capital and therefore by the inapplicability of Chapter III of that directive, Article 9 of the directive does not empower the Member States to refrain from regarding them as equivalent.", "paragraph_id": "para_154" }, { "text": "39       It follows that, without prejudice to the application of the duties and taxes referred to in Article 6 of Directive 2008/7, Member States are under an obligation, under Article 5(1)(d)(i) of that directive, read in conjunction with Article 2(2) thereof, not to subject that type of conversion to any form of indirect tax whatsoever, without Article 9 of that directive having any bearing in that regard.", "paragraph_id": "para_155" }, { "text": "40       It is for the referring court to determine whether the conversion at issue in the main proceedings was accompanied by a contribution of capital. Since the concept of ‘contribution of capital’ is defined in Article 3 of Directive 2008/7, it will be for that court to ascertain whether that conversion is covered by one of the categories of transactions listed in Article 3. Subject to that verification, it appears, at first sight, as the Advocate General observed in points 40 to 47 of his Opinion, on the basis of the information set out in the request for a preliminary ruling, that that conversion was not accompanied by a contribution of capital and therefore falls within the scope of Article 5(1)(d)(i) of that directive. It follows, subject to the possible application of Article 6 of that directive, which does not, however, appear to be relevant in the case in the main proceedings, that that conversion could not be subject to any indirect tax.", "paragraph_id": "para_156" }, { "text": "41       In the light of the foregoing, the answer to the question referred is that Article 9 of Directive 2008/7 must be interpreted as meaning that the exercise, by a Member State, of the option provided for in Article 9 does not allow that Member State to levy an indirect tax on the conversion, not accompanied by a contribution of capital, of an entity operating for profit that is not referred to in Article 2(1) of that directive into another entity operating for profit that is also not referred to in that provision. Such a conversion must not be subject to any form of indirect tax whatsoever, pursuant to Article 5(1)(d)(i) of that directive, read in conjunction with Article 2(2) thereof, subject to the application of the duties and taxes referred to in Article 6 of that directive.", "paragraph_id": "para_157" }, { "text": "Costs", "paragraph_id": "para_158" }, { "text": "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.", "paragraph_id": "para_159" }, { "text": "On those grounds, the Court (Third Chamber) hereby rules:", "paragraph_id": "para_160" }, { "text": "Article 9 of Council Directive 2008/7/EC of 12 February 2008 concerning indirect taxes on the raising of capital", "paragraph_id": "para_161" }, { "text": "must be interpreted as meaning that the exercise, by a Member State, of the option provided for in Article 9 does not allow that Member State to levy an indirect tax on the conversion, not accompanied by a contribution of capital, of an entity operating for profit that is not referred to in Article 2(1) of that directive into another entity operating for profit that is also not referred to in that provision. Such a conversion must not be subject to any form of indirect tax whatsoever, pursuant to Article 5(1)(d)(i) of that directive, read in conjunction with Article 2(2) thereof, subject to the application of the duties and taxes referred to in Article 6 of that directive.", "paragraph_id": "para_162" }, { "text": "[Signatures]", "paragraph_id": "para_163" }, { "text": "*       Language of the case: Polish.", "paragraph_id": "para_164" } ], "operative_part": "On those grounds, the Court (Third Chamber) hereby rules:\n\nArticle 9 of Council Directive 2008/7/EC of 12 February 2008 concerning indirect taxes on the raising of capital\n\nmust be interpreted as meaning that the exercise, by a Member State, of the option provided for in Article 9 does not allow that Member State to levy an indirect tax on the conversion, not accompanied by a contribution of capital, of an entity operating for profit that is not referred to in Article 2(1) of that directive into another entity operating for profit that is also not referred to in that provision. 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