Opinion of Advocate General Biondi delivered on 13 February 2025

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Case date: 13 februari 2025

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OPINION OF ADVOCATE GENERAL

BIONDI

delivered on 13 February 2025 (¹)

Case C‑685/23

Corner and Border S. A.

Autoridade Tributária e Aduaneira

(Request for a preliminary ruling from the Tribunal Arbitral Tributário (Centro de Arbitragem Administrativa – CAAD), (Tax Arbitration Tribunal, Centre for Administrative Arbitration – CAAD, Portugal))

( Request for a preliminary ruling – Indirect taxes on the raising of capital – Issue of debentures – Guarantee agreement – Stamp duty – Scope of the concept of relative formality – Concept of other charges on land or other property )

I. Legal framework

A. European Union law

1. Article 5 of Directive 2008/7/EC, (²) entitled ‘Transactions not subject to indirect tax’, states, in paragraph 2, as follows:

‘Member States shall not subject the following to any form of indirect tax whatsoever:

…

(b) loans, including government bonds, raised by the issue of debentures or other negotiable securities, by whomsoever issued, or any formalities relating thereto, or the creation, issue, admission to quotation on a stock exchange, making available on the market or dealing in such debentures or other negotiable securities.’

2. Article 6 of that directive, entitled ‘Duties and value added tax’, is worded as follows:

‘Notwithstanding Article 5, Member States may charge the following duties and taxes:

…

(d) duties on the creation, registration or discharge of mortgages or other charges on land or other property;

…’

B. Portuguese law

3. Article 1 of Law No 150/99 of 11 September 1999, which approved the Código do Imposto do Selo (the Stamp Duty Code), entitled ‘Stamp Duty Code and annexed tariff’, is worded as follows:

‘The Stamp Duty Code and the General Tariff annexed thereto are hereby approved and replace, respectively, the Stamp Duty Regulation, approved by Decree No 12700 of 20 November 1926, and the General Stamp Duty Tariff, approved by Decree No 21916 of 28 November 1932, as amended.’

4. Point 10 of the General Stamp Duty Tariff (‘TGIS’) reads as follows:

‘10. – Guarantees of debentures, whatever their nature or form, namely collateral security, sureties, autonomous bank guarantees, autonomous guarantees, mortgages, pledges and insurance cover, except where they are incidental to contracts specifically subject to taxation in this tariff and are created at the same time as the guaranteed debenture, even if in a different instrument or security, for its respective value, according to the term, with any extension to the term of a contract being regarded as a new transaction:

….

10.3 – Guarantees with no indication of term or having a term of five years or more – 0.6%.’

II. The dispute in the main proceedings and the questions referred for a preliminary ruling

5. Corner and Border S. A. (‘C&B’) is a public limited company under Portuguese law, the share capital of which is wholly owned by ONEX RENEWABLES S.à r.l., a limited liability company registered in the Luxembourg commercial register (‘ONEX’).

6. On 21 July 2021, ONEX acquired from EDP RENEWABLES, SGPS, S. A., a public limited company under Portuguese law, all of the share capital of EÓLICA DO SINCELO, S A., a public limited company under Portuguese law (‘ES’) and of EÓLICA DA LINHA, S. A., a public limited company under Portuguese law (‘EL’).

7. On 29 July 2021, ONEX assigned to C&B its contractual position in the contract for the purchase of the shares in ES and EL.

8. On 27 January 2022, C&B concluded a financing agreement known as the Facilities Agreement, under which it issued a series of debentures, made up of registered debentures held in book-entry form, with a face value of EUR 100 000 per security, for a total amount of EUR 348 900 000, divided into two classes of debentures (‘A’ and ‘B’), which were subscribed in their entirety by BANCO SANTANDER TOTTA, S.A. (‘BST’).

9. The Facilities Agreement was concluded in order to finance payment of the purchase price of the shares in ES and EL and to refinance the debt of those companies.

10. In order to guarantee compliance with all of the obligations and liabilities assumed under the Facilities Agreement, ONEX, C&B, ES and EL provided security over assets and personal guarantees under a contract known as the Security Agreement, concluded between those companies, in their capacity as guarantors, and BST, in its capacity as beneficiary and security agent.

11. Pursuant to the Security Agreement, ONEX granted a number of guarantees and promises of guarantees, (³) as did C&B, (⁴) ES and EL. (⁵)

12. The conclusion of the Security Agreement and the provision of the guarantees listed above formed necessary and essential requirements for the conclusion of the Facilities Agreement and the subsequent issue of the series of debentures.

13. On 27 January 2022, the notary who drew up and authorised the Facilities Agreement and the Security Agreement calculated the stamp duty in accordance with item 10.3 of the TGIS, applying a rate of 0.6% to the amount of EUR 348 900 000, thereby resulting in a tax liability of EUR 2 093 400.

14. C&B authorised the amount of EUR 2 093 400 to be debited from its bank account.

15. On 3 August 2022, C&B lodged an administrative appeal against the stamp duty assessment.

16. On 3 December 2022, the administrative appeal was deemed to have been tacitly refused because of the Tax Authority’s failure to take a decision on the matter.

17. On 2 March 2023, C&B brought the arbitration claim, which has given rise to the present proceedings.

18. In those circumstances, the Tribunal Arbitral Tributário (Centro de Arbitragem Administrativa – CAAD) (Tax Arbitration Tribunal, Centre for Administrative Arbitration – CAAD) stayed the proceedings and referred the following questions to the Court of Justice for a preliminary ruling:

‘(1) Must Article 5(2)(b) of Council Directive [2008/7] of 12 February 2008 be interpreted as precluding taxation in the form of stamp duty on guarantees consisting of pledges of shares, bank account balances and shareholder loans, and of transfers of credits by way of collateral, provided in relation to a transaction to issue debentures?

(2) Would the answer to the first question referred differ according to whether the provision of the guarantees constitutes a legal obligation or whether it is optional and has been agreed voluntarily?

(3) Would the answer to the first question referred be different where the guarantees were provided in the context of a transaction to issue debentures, subject to private subscription by a bank, whose position as subscriber may be transferred at the discretion of the issuing entity, even if such a transfer is subject to certain conditions and to penalties/commissions?

(4) Must Article 6(1)(d) of Council Directive [2008/7] of 12 February 2008 be interpreted as meaning that it includes guarantees consisting of pledges of shares, bank account balances and shareholder loans, and of transfers of credits by way of collateral, provided in relation to a transaction to issue debentures falling within the scope of Article 5(2)(b) of that directive?’

III. Legal analysis

19. By its four questions, the referring court asks, in essence, whether Articles 5(2)(b) and 6(1)(d) of Directive 2008/7 must be interpreted as precluding national legislation which provides for the imposition of stamp duty on guarantees granted, in the form of pledges over shares, bank account balances and shareholder loans, and in the form of transfers of credits, with a view to the correct fulfilment of obligations arising from a debenture loan issued by a capital company.

20. My legal analysis will begin precisely by examining the relationship between the two provisions of EU law, which I consider central, in order to provide a useful answer to the questions raised by the referring court. I will first deal with my proposed interpretation in terms of principle, and will then conclude my reasoning after analysing both provisions.

21. Article 5 lays down the principle that loans and contracts raised by the issue of debentures or other negotiable securities and any formalities relating thereto are not subject to indirect tax. As the Court of Justice has held on many occasions, Directive 2008/7 provided for complete harmonisation of the cases in which the Member States may levy indirect taxes on the raising of capital. (⁶) Article 6, therefore, expressly derogates from the provisions of Article 5 and allows Member States to charge taxes only ‘on the creation, registration or discharge of mortgages or other charges on land or other property’.

22. The relationship between the two provisions is clearly one of rule and exception: the first lays down a general rule, the second applies, by way of derogation from the first rule, only where the conditions which it lays down are satisfied.

23. It will therefore have to strike a balance between the two principles expressed by the two provisions (free movement of capital and the Member States’ right to tax in the cases expressly provided for), while taking into account the fact that the former has a general scope, and also bearing in mind that indirect taxes on the raising of capital give rise to discrimination, double taxation and disparities which interfere with the free movement of capital. (⁷) The second has, however, in these situations, a purely residual scope, but is not devoid of content. The EU legislature itself, after stating that the best solution for achieving the objectives of Directive 2008/7, namely the harmonisation of legislation on indirect taxes on the raising of capital, (⁸) would be to abolish capital duty, stated that the losses of revenue which would result from the immediate application of such a measure are currently unacceptable for the Member States. (⁹)

24. In order to strike that balance, it is therefore necessary, first, to examine the scope of Article 5. Article 5 prohibits the imposition of indirect taxes not only on financial transactions in the form of the issue of debentures but also on any ‘formalities relating thereto’.

25. In the present case, it is clear that the main financial transaction falls within the broad concept of loans ‘raised by the issue of debentures or other negotiable securities’. The question is whether the guarantee agreement entered into at the same time as the debenture loan agreement falls within the concept of ‘formalities relating thereto’.

26. As the Court of Justice has stated, in view of the objective pursued by that directive, Article 5 thereof must be interpreted broadly, so as to ensure that the prohibitions it lays down are not denied practical effect. The prohibition of a tax on transactions for the raising of capital also applies to transactions which are not expressly covered by that prohibition, where such taxation is tantamount to taxing a transaction forming an integral part of an overall transaction relating to the raising of capital. (¹⁰)

27. However, it is necessary to assess how far such an extension of the interpretation goes. The case-law of the Court of Justice offers guidance in this regard. First, any action which a capital company is, under national law, obliged to carry out in order to create, issue, admit to trading on an exchange, make available on the market or trade in the negotiable securities in question must be exempt from indirect taxation, because it is linked to the concept of ‘formality relating thereto’. (¹¹) Second, those transactions, such as services relating to the marketing of shares in common funds, which, being closely linked to the operations relating to the issuing and making available on the market of shares, constitute a necessary business approach which, as such, must be regarded as an incidental transaction, integral to the issue of shares in those funds and their being made available on the market, must be exempt from taxation. (¹²)

28. The guarantee agreement is certainly incidental to the loan agreement and is closely linked to it from both a commercial and a legal point of view. From a legal point of view, although it has its own autonomy, the guarantee agreement relates to the loan agreement and its function is precisely to guarantee to the lender repayment of the claim by the debtor. The question that arises, however, is whether it can be regarded as imposed by national law or whether (alternatively) it can be regarded as a necessary business approach in connection with the loan agreement.

29. My answer to those questions is much more detailed and problematic than that proposed by the appellant or the Commission. Guarantee agreements are not normally imposed by law or by any other binding source when debentures are issued. As has been stated, they are legally independent of loan agreements in the sense that a loan agreement may exist in law without a guarantee agreement. The two agreements also have different purposes: the first is intended to enable the financial and industrial operation of an undertaking by means of the subscription of debentures by a credit institution; the other is designed to provide a guarantee to the credit institution that it will receive back the sums lent. That means that, unlike the situation examined by the Court of Justice in Case C‑656/21, cited above, the two transactions do not have the same purpose and the occurrence of the second has no direct function in relation to the actual implementation of the first transaction. That may be true only from the point of view of the debtor: the creditor, as the appellant appears to assert in the pleadings, might have made the provision of guarantees a condition of the transaction.

30. The fact that the guarantee agreement is ancillary to and connected with the loan agreement does not, in my view, inevitably lead to them being indissociable to the extent that one is necessary for the actual legal existence of the other. The loan agreement may exist and produce its legal effects even without a guarantee agreement being signed. It is the will of the parties, by means of a specific agreement, which is the source of the guarantees granted. The provision of guarantees and their importance, as experience shows, are proportionate, in any form of financing, to the debtor’s creditworthiness. The more reliable the debtor or the financial project for which financing is sought, the lower the amount of security required by the creditor.

31. The second question which arises is whether the provision of guarantees may be regarded as a necessary business approach in a complex and single transaction. Without prejudice to the foregoing, common experience shows that, in normal financing operations (mortgage loans, consumer credit and so forth), a debtor is, in practice, always required to provide a guarantee, failing which the requested financing cannot be granted. In the case of more complex financial transactions, experience is likely to be more varied. Very different answers were given to the question put by the Court of Justice to the parties at the hearing as to whether the issue of a debenture is usually accompanied by the provision of guarantees or if the latter is to be regarded as exceptional. While the appellant asserted that the provision of special guarantees is very common, the Portuguese Republic argued, by contrast, that most debentures are not covered by guarantees because the debtor’s assets constitute the general guarantee of performance of the obligations. Moreover, when a guarantee is provided, it is on an exceptional basis because guarantees are neither usual nor essential for the conclusion of debenture issues.

32. I am not convinced that the fact that the provision of guarantees is in theory the ‘norm’ in the case of debenture loans is sufficient to ascribe the provision of guarantees to the category of necessary business approaches in a single, complex transaction. In any event, in the light of the differing answers received at the hearing, it will be for the national court to ascertain what the actual situation is on the Portuguese financial market.

33. In essence, in my view, in order for a guarantee agreement to be regarded as a formality relating to a loan agreement, it is necessary for the national court to establish the existence of one of the following alternative conditions: either an obligation imposed by law or by another binding source, leaving no freedom of choice, to provide guarantees in the case of a debenture issue, or the existence of factual situations such that the provision of guarantees may be regarded as a necessary business approach in a single, complex transaction.

34. A symptomatic element which could guide the national court in its determination could be, precisely, the essential nature of the provision of guarantees for the purposes of concluding the loan agreement, in the sense that, without the provision of guarantees, a loan agreement such as that at issue in the main proceedings could not be entered into. Thus, even while retaining its legal autonomy, a guarantee agreement could, under a broad interpretation which takes account of the aims of the directive, be categorised as a necessary business approach (or, more accurately, transaction), which may be regarded as an incidental transaction, integral to the issue of debentures and making them available on the market.

35. The possibility, under the conditions described above, that the guarantee agreement may be considered a formality relating to a loan agreement does not exempt us from analysing the content of Article 6. The prohibition on the application of indirect taxes to financial transactions such as the issue of debentures and to all transactions so closely linked to it that it may be regarded as a single, complex transaction must be regarded as the rule. However, it must be read in conjunction with the exception, namely the possibility of applying indirect taxes in cases where, in the context of the transactions referred to in Article 5, and thus also in the issuing of debentures, there is ‘the creation, registration or discharge of mortgages or other charges on land or other property’.

36. Article 6 is intended to preserve the Member States’ power to impose taxes in certain specific and exceptional cases in which, in balancing the various interests at stake, the imposition of an indirect tax has been deemed compatible with the free movement of capital.

37. In my view, that situation covers precisely the subject matter of the case in the main proceedings, namely the case in which the financial transaction is accompanied by the provision of guarantees by the debtor that may fall within the concept described by the EU legislature.

38. While the concept of a mortgage is well known and its meaning is similar in the various legal systems, since it is the typical security over immovable property used to secure a loan, the question of interpretation arises from the meaning to be given to the term ‘other charges on land or other property’, (¹³) which is not defined in EU legislation and which has differing definitions in the legal systems of the Member States. (¹⁴)

39. Without entering into complex reflections on the various types of guarantee existing in the legal systems of the Member States, it is necessary, in my view, to seek a meaning that can be unambiguous for EU law, with reference to its relationship to the concept of a mortgage.

40. The Commission carries out an (admittedly partial and selective) analysis of the terms used in the different language versions, reaching the conclusion that there is no single meaning; that would require the use of interpretative criteria other than the literal criterion, and thus an analysis of the context and the function, that is to say, the purpose of the directive.

41. I agree with that part of the analysis, but not with the Commission’s conclusions. The analysis of the different language versions does not provide the interpreter with a safe foundation on which to base a reliable conclusion. Nor does the preparatory work, as the Commission itself has confirmed, provide convincing explanations as to the reasons for the introduction of the derogation provided for in Article 6(1)(d) or the meaning to be given to the term ‘other charges on land or other property’.

42. In examining the purpose of the directive and the context in which the provision applies, the Commission essentially concludes that the expression ‘other charges on land or other property’ has the meaning of a charge on immovable property similar to that provided for in the case of a mortgage.

43. In accordance with settled case-law, for the purpose of interpreting a provision of EU law, it is necessary to consider not only its wording but also the context and the objectives pursued by the rules of which it is part. (¹⁵) Within that framework, I find the interpretation proposed by the Commission unconvincing for a number of reasons. First and foremost, from a literal point of view, it does not appear to me that the majority of the language versions examined lend themselves to the interpretation adopted by the Commission. Second, an analysis of the context and purpose of the directive may lead to a very different conclusion.

44. While it is true that the directive is primarily intended to implement the principle of free movement of capital and, therefore, to exempt capital in principle from the application of indirect taxes, it also has a harmonising purpose which, in so far as it is not regarded as obstructing the effectiveness of the prohibition on the application of indirect taxes, leaves the Member States with residual powers of taxation.

45. A balance has therefore already been struck by the EU legislature through the establishment of the broad rule and the narrow exceptions. It would be a methodological error to impose a further limitation when interpreting it. I therefore agree with a broad interpretation of the rule contained in Article 5 that also includes situations which are not directly covered by it, but which are inextricably linked to it.

46. On the other hand, I do not think that it is correct, even when adopting a restrictive interpretation of the situations referred to in Article 6, in particular paragraph 1(d), to render the expression ‘mortgages or other charges on land or other property’ completely meaningless by treating it in essence as a hendiadys. (¹⁶) As if to say that the exception applies only in the case of mortgages or similar guarantees relating solely to immovable property.

47. Instead, I believe that it is necessary to examine the meaning of the provision by assessing what particular function and feature a mortgage might have in the provision of guarantees to protect a claim, and then to attribute an appropriate meaning to the term ‘charge on land or other property’.

48. A mortgage is known to be a type of guarantee that offers the creditor special preferential rights in the event of default by the debtor. That means that, where a debtor has multiple debts, the creditor who is the beneficiary of the mortgage will see its claim over the debtor’s assets satisfied in priority.

49. There are other types of guarantee, including securities relating to movable property, which confer on the creditor a similar advantage, namely that of being satisfied as a matter of priority in the event of default by the debtor.

50. I am of the opinion that, by using the expression ‘mortgages or other charges on land or other property’, the directive intended to refer, as a whole, to types of security whose creation, registration or cancellation had a similar effect on a creditor’s rights: that of being a guarantee capable of granting special preferential rights to the settlement of a claim in the event of default. That is irrespective of whether such guarantees relate to movable or immovable property.

51. The term ‘charges on land or other property’ should certainly include pledges relating to movable property, in so far as they confer, in the legal order of the Member State, special preferential rights within the meaning indicated above. Likewise, possibly, other types of guarantee having the same effect.

52. If, therefore, in Portugal, as was understood from the Portuguese Government’s observations at the hearing, a pledge is the highest possible guarantee, comparable in functional terms to a mortgage, it is hard to see any reason for ruling out the possibility of levying stamp duty on the guarantee agreement.

53. In the present case, it will be for the national court to assess whether the guarantees contained in the guarantee agreement linked to the issue of debentures, even though they are not in the nature of a mortgage or relating to immovable property, are capable of producing the effects described and therefore fall, in the light of the provisions of national law, within the concept of ‘charge on land or other property’.

54. Returning to the beginning of my reasoning, I can now draw some conclusions by reiterating the central nature of the relationship between Article 5 and Article 6 of Directive 2008/7 for a useful answer to the questions referred by the national court.

55. A reading of the recitals in the preamble to the directive and the debate in the legal literature on the matter both point in the direction of calling for an end to the possibility for Member States to impose indirect taxes in situations where capital transactions are concluded.

56. However, if it has been decided to allow the Member States, for reasons of tax revenue for the public good, to tax certain transactions linked to capital transactions, albeit as a derogation of limited application, it is necessary to make sense of that choice by the EU legislature, which has clearly struck a balance between conflicting interests. As indicated above, the balance to be struck is on two levels: between the free movement of capital and the Member States’ power of taxation, and between the effectiveness of the prohibition laid down in Article 5 and the applicability of the exception laid down in Article 6.

57. The interpretation proposed by the appellant in the main proceedings and, to a large extent also by the Commission, does not, in my view, allow the appropriate balance to be struck at either of those two levels. In particular, it deprives Article 6(1)(d) of any meaning and renders it pointless, creating the unfair situation that it is only in the case of a guarantee agreement providing for mortgages that indirect taxes can be applied. That creates a disparity in treatment between guarantees having the same functions and effects, which would adversely affect the contractual autonomy of the parties. They would be strongly deterred from opting for mortgage guarantees because that would lead to the possibility of indirect taxes being imposed, while such taxes would not be applicable in the case of guarantees relating to movable property having similar legal effects.

IV. Conclusion

58. On the basis of all of the foregoing considerations, I propose that the Court answer the questions referred for a preliminary ruling by the Tribunal Arbitral Tributário (Centro de Arbitragem Administrativa – CAAD) (Tax Arbitration Tribunal (Centre for Administrative Arbitration – CAAD), Portugal) as follows:

(1) Article 5(2)(b) of Council Directive 2008/7/EC of 12 February 2008 concerning indirect taxes on the raising of capital

must be interpreted as precluding taxation in the form of stamp duty on guarantees consisting of pledges of shares, bank account balances and shareholder loans, and of transfers of credits by way of collateral, provided in relation to a transaction to issue debentures, provided that the guarantee agreement can be linked to a formality relating to the loan contract. That is the case where the obligation to provide guarantees in the event of a debenture issue is imposed by law or by another binding source, leaving no freedom of choice, or, alternatively, where the national court finds that there are factual situations such that the provision of a guarantee may be regarded as a necessary business approach initiative for a single, complex transaction.

(2) The provision of guarantees imposed by law is a condition for regarding a guarantee agreement entered into in connection with a loan agreement as a formality relating to the latter and, therefore, precludes the imposition of an indirect tax within the meaning of Article 5(2)(d) of Directive 2008/7.

(3) The fact that guarantees have been provided in the context of a transaction to issue debentures, subject to private subscription by a bank, whose position as subscriber may be transferred at the discretion of the issuing entity, even if such a transfer is subject to certain conditions and to penalties/commissions, has no bearing on the answer to the first question.

(4) Article 6(1)(d) of Directive 2008/7

must be interpreted as meaning that it includes all guarantees provided in relation to a transaction to issue debentures falling within the scope of Article 5(2)(b) of that directive, the creation or registration of which has a similar effect on the creditor’s rights: that of attributing special preferential rights to the satisfaction of claims in the event of default. That is irrespective of whether such guarantees relate to movable or immovable property.