Judgment of the Court (First Chamber) of 4 June 2026.#NOVA IBEROMOLDES - SGPS, S.A. v Autoridade Tributária e Aduaneira.#Request for a preliminary ruling from the Tribunal Arbitral Tributário (Centro de Arbitragem Administrativa - CAAD).#Reference for a preliminary ruling – Taxation – Indirect taxes on the raising of capital – Directive 2008/7/EC – Article 5(1)(a) and (e) – Contributions of capital – Restructuring operations – Article 6(1)(a) to (c) – Duties on the transfer of securities – Transfer duties – Formation of a capital company – Paying-up of the share capital by means of shares held by the contributing company in companies owning immovable property – Tax in respect of the transfers of immovable property for consideration.#Case C-837/24.

Provisional text

JUDGMENT OF THE COURT (First Chamber)

4 June 2026 (*)

( Reference for a preliminary ruling – Taxation – Indirect taxes on the raising of capital – Directive 2008/7/EC – Article 5(1)(a) and (e) – Contributions of capital – Restructuring operations – Article 6(1)(a) to (c) – Duties on the transfer of securities – Transfer duties – Formation of a capital company – Paying-up of the share capital by means of shares held by the contributing company in companies owning immovable property – Tax in respect of the transfers of immovable property for consideration )

In Case C‑837/24,

REQUEST for a preliminary ruling under Article 267 TFEU from the Tribunal Arbitral Tributário (Centro de Arbitragem Administrativa – CAAD) (Tax Arbitration Tribunal (Centre for Administrative Arbitration – CAAD), Portugal), made by decision of 3 December 2024, received at the Court on 6 December 2024, in the proceedings

NOVA IBEROMOLDES – SGPS, S.A.

v

Autoridade Tributária e Aduaneira,

THE COURT (First Chamber),

composed of F. Biltgen, President of the Chamber, I. Ziemele, A. Kumin (Rapporteur), S. Gervasoni and M. Bošnjak, Judges,

Advocate General: J. Kokott,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

–        NOVA IBEROMOLDES – SGPS, S. A., by V. Faria, advogado,

–        the Portuguese Government, by P. Barros da Costa, H. Gomes Magno and A. Rodrigues, acting as Agents,

–        the German Government, by J. Möller and R. Kanitz, acting as Agents,

–        the European Commission, by P. Carlin, P. Caro de Sousa, G. Coelho and A. Ferrand, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 12 February 2026,

gives the following

Judgment

1        This request for a preliminary ruling concerns the interpretation of Article 3(a), Article 4, Article 5(1)(a) and (e), Article 6(1)(a) to (c), Article 8(3) and Article 11 of Council Directive 2008/7/EC of 12 February 2008 concerning indirect taxes on the raising of capital (OJ 2008 L 46, p. 11).

2        The request has been made in proceedings between NOVA IBEROMOLDES – SGPS, S. A. (‘Nova Iberomoldes’) and the Autoridade Tributária e Aduaneira (Tax and Customs Authority, Portugal; ‘the tax authority’) concerning a notice of additional payment of the imposto municipal sobre as transmissões onerosas de imóveis (municipal tax on transfers of immovable property for consideration; ‘IMT’) issued following the business reorganisation carried out within the group to which Nova Iberomoldes belongs.

 Legal context

 European Union law

3        According to recitals 2 to 4 of Directive 2008/7:

‘(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, regardless of whether those operations involve an increase in capital, give rise to discrimination, double taxation and disparities which interfere with the free movement of capital. The same applies as regards other indirect taxes with the same characteristics as capital duty and the stamp duty on securities.

(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.

(4)      The economic effects of capital duty are detrimental to the regrouping and development of undertakings. Such effects are particularly harmful in the present economic situation in which there is a paramount need for priority to be given to stimulating investment.’

4        Article 1 of that directive, entitled ‘Subject matter’, is worded as follows:

‘This Directive regulates the levying of indirect taxes in respect of the following:

(a)      contributions of capital to capital companies;

(b)      restructuring operations involving capital companies;

…’

5        Article 2 of that directive, entitled ‘Capital company’, states, in paragraph 1(a):

‘For the purposes of this Directive “capital company” means:

(a)      any company which takes one of the forms listed in Annex I’.

6        Article 3 of Directive 2008/7, entitled ‘Contributions of capital’, states:

‘For the purposes of this Directive and subject to Article 4, the following transactions shall be considered to be “contributions of capital”:

(a)      the formation of a capital company;

…’

7        Article 4 of that directive, entitled ‘Restructuring operations’, provides, in paragraph 1:

‘For the purposes of this Directive, the following restructuring operations shall not be considered to be contributions of capital:

…

(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. …’

8        Article 5 of that directive, entitled ‘Transactions not subject to indirect tax’, provides, in paragraph 1:

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

(a)      contributions of capital;

…

(e)      the restructuring operations referred to in Article 4.’

9        Article 6 of that directive, entitled ‘Duties and value added tax’, provides, in paragraph 1:

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

(a)      duties on the transfer of securities, whether charged at a flat rate or not;

(b)      transfer duties, including land registration taxes, on the transfer, to a capital company, of businesses or immovable property situated within their territory;

(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;

…’

10      Article 7 of Directive 2008/7, entitled ‘Levying of capital duty in certain Member States’, provides, in paragraph 1:

‘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.’

11      According to Article 8 of that directive, entitled ‘Rate of capital duty’:

‘1.      Capital duty shall be charged at a single rate.

…

3.      The rate of capital duty may not in any event exceed 1%.’

12      Article 11 of that directive governs the determination of the basis of assessment for capital duty.

13      Point 22 of Annex I to that directive refers, inter alia, to sociedade anónima, namely public limited companies incorporated under Portuguese law.

 Portuguese law

14      According to Article 2 of the Código do Imposto Municipal sobre as Transmissões Onerosas de Imóveis (Code on municipal tax on transfers of immovable property for consideration), established by Decreto-Lei n.º 287/2003 (Decree-Law No 287/2003) of 12 November 2003, in the version in force at the time of the facts at issue in the main proceedings (‘the IMT Code’):

‘1 – IMT shall be levied on transfers, for consideration, of the right of ownership, or parts of that right, over immovable property located in the national territory.

2 – For the purposes of paragraph 1, the concept of transfer of immovable property shall also include:

…

(d)      the acquisition of interests or shares in general partnerships, limited partnerships or private limited liability companies, where those companies or partnerships are the owners of immovable property and where, by that acquisition, by amortisation or by any other means, any shareholder or partner comes to hold at least 75% of the share capital or partnership interests, or the number of shareholders or partners is reduced to a married couple or a cohabiting couple.

…’

15      In the case of the transactions referred to in Article 2(2)(d) of that code, Article 12(4)(19)(a) and Article 17 of that code provide for the application of an IMT rate of between 1% and 8% of the taxable amount, which corresponds to the reference value of the immoveable property for tax purposes or to the balance sheet book value, if the latter is higher.

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

16      Nova Iberomoldes was formed on 28 March 2019 as a public limited company incorporated under Portuguese law. Its share capital was fully paid up by means of non-cash contributions, in the form of shareholdings held by its sole shareholder in several companies. Part of the assets of one of those companies, namely a limited liability company the share capital of which is now 100% owned by Nova Iberomoldes, consisted of two immovable properties.

17      Following an inspection of the tax situation of Nova Iberomoldes’ sole shareholder, the tax authority took the view that the asset contribution transaction relating to the formation of Nova Iberomoldes did not satisfy the requirements for the application of a regime known as the ‘rules on tax neutrality’ and that that transaction was subject to IMT, pursuant to Article 2(2)(d) of the IMT Code.

18      Nova Iberomoldes submitted a request for an arbitration decision to the Tribunal Arbitral Tributário (Centro de Arbitragem Administrativa – CAAD) (Tax Arbitration Tribunal (Centre for Administrative Arbitration – CAAD), Portugal), which is the referring court, seeking the annulment of the supplementary assessment for IMT issued by the tax authority. According to that company, the rule laid down in Article 2(2)(d) of the IMT Code does not comply with Directive 2008/7. In its view, in the present case, the formation of a capital company gave rise to a contribution of capital, within the meaning of Article 3(a) of that directive, which should not be subject to any kind of indirect tax whatsoever, in accordance with Article 5(1)(a) of that directive.

19      Nova Iberomoldes also maintained that the transfer of the shares which constitutes the contribution of capital and which gave rise to the supplementary assessment for IMT does not fall within the exception referred to in Article 6 of Directive 2008/7, either on the ground that the shares in question are not ‘securities’ within the meaning of Article 6(1)(a) of that directive, or on the ground that IMT is not a ‘transfer duty’ within the meaning of Article 6(1)(b) of that directive. In any event, even if it were permitted that that contribution is subject to IMT, the resulting tax would be in breach of the single rate principle laid down by that directive, since the rates applied exceed the ceiling of 1% laid down in Article 8(3) thereof.

20      The tax authority argued that not only does Directive 2008/7 not prohibit Member States from levying taxes on the transfer of securities, but it allows such levying, in Article 6(1)(a) of that directive. It argues that the IMT Code provides that certain transactions involving the indirect transfer of immovable property are subject to IMT, which is intended to prevent a situation whereby, through the purchase of shares of companies owning immovable property, the ownership of immovable property can be acquired, indirectly, without having been taxed.

21      Harbouring doubts as to the compatibility of the national legislation with Directive 2008/7, the Tribunal Arbitral Tributário (Centro de Arbitragem Administrativa – CAAD) (Tax Arbitration Tribunal (Centre for Administrative Arbitration – CAAD) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1)      Must a tax (such as the [IMT] at issue in the present case) which is levied on transfers, for value, of the right of ownership, or parts of that right, over immovable assets, and which equates to the concept of the transfer of immovable assets any situation by virtue of which a shareholder or partner comes to hold, at least, 75% of the share capital or partnership interests in a company or partnership owning immovable assets, be regarded as an “indirect tax” on the raising of capital, for the purposes of [Directive 2008/7]?

(2)      If the first question referred is answered in the affirmative, for the purposes of that directive, must a transaction, such as that forming the subject matter of the present case, whereby a capital company, within the meaning of Article 2 of [Directive 2008/7], is formed to carry on the activity of managing holdings in companies and the entirety of the share capital is paid up by means of the contribution of holdings that the contributing company (which also carries on the activity of managing holdings in companies) had in other companies, without any other element or resource or even the entirety of the equity instruments being transferred, and in which, as consideration, the contributing company receives the entirety of the share capital in the beneficiary company, be regarded as a contribution of capital (within the meaning of Article 3 of that directive) or as a restructuring operation (within the meaning of Article 4 of that directive)?

(3)      If the first question referred is answered in the affirmative, does Article 5(1)(a) or (e) of [Directive 2008/7] preclude tax being levied on the transaction in question pursuant to Article 2(2)(d) of the IMT Code, which equates to the concept of the transfer of immovable assets the transfer of shares or interests representing at least 75% of the share capital or partnership interests in a company or partnership owning immovable assets[?]

(4)      If the third question referred is answered in the affirmative, for the purposes of Article 6(1)(a) of [Directive 2008/7], must the “limited company shares” transferred be regarded as “securities”?

(5)      If the third question referred is answered in the affirmative, for the purposes of Article 6(1)(b) or (c) of [Directive 2008/7], must IMT be regarded as a “transfer duty”?

(6)      If Article 2(2)(d) of the IMT Code is considered compatible with [Directive 2008/7], do Articles 8(3) and 11 of that directive preclude the rules laid down in Articles 12(4)(19)(a) and 17 of the IMT Code, in accordance with which a tax rate of between 1% and 8% is applied, according to the taxable amount, which is determined taking into account the reference value of the properties for tax purposes or the balance sheet book value, if that is greater?’

 Consideration of the questions referred

 The first to fifth questions

22      According to settled case-law, in the procedure laid down by Article 267 TFEU providing for cooperation between national courts and the Court of Justice, it is for the latter to provide the national court with an answer which will be of use to it and enable it to determine the case before it. To that end, the Court should, where necessary, reformulate the questions referred to it. In that regard, it is for the Court to extract from all the information provided by the national court, in particular from the grounds of the order for reference, the points of EU law which require interpretation, having regard to the subject matter of the dispute (see, to that effect, judgments of 13 December 1984, Haug-Adrion, 251/83, EU:C:1984:397, paragraph 9, and of 23 October 2025, Zlakov, C‑744/23, EU:C:2025:816, paragraph 17).

23      In the present case, in the light of the factual context as set out in the order for reference, the first to fifth questions must be understood as asking the Court to determine whether Article 3(a), Article 4(1)(b), Article 5(1)(a) and (e) and Article 6(1)(a) to (c) of Directive 2008/7 must be interpreted as precluding national legislation which provides that a transaction involving the formation of a capital company the share capital of which is fully paid up by means of shareholdings held in other companies owning immovable property by the contributing company, which receives, as consideration, the entire share capital of the company thus formed, is subject to tax, the basis of assessment for which is determined according to the reference value of those immovable properties for tax purposes or, if applicable, the balance sheet book value.

 Article 3(a), Article 4(1)(b) and Article 5(1) of Directive 2008/7

24      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 (judgment of 24 February 2022, Viva Telecom Bulgaria, C‑257/20, EU:C:2022:125, paragraph 65 and the case-law cited).

25      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 (judgment of 22 April 2015, Drukarnia Multipress, C‑357/13, EU:C:2015:253, paragraph 31).

26      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 (see, to that effect, judgment of 22 April 2015, Drukarnia Multipress, C‑357/13, EU:C:2015:253, paragraph 32).

27      To that end, Article 5(1)(a) and (e) of Directive 2008/7 requires Member States not to subject capital companies to any form of indirect tax whatsoever in respect of the contributions of capital referred to in Article 3 of that directive and in respect of the restructuring operations referred to in Article 4 of that directive.

28      According to Article 3(a) of Directive 2008/7, the concept of ‘contribution of capital’ includes the formation of a capital company. However, under Article 4(1) of that directive, the restructuring operation referred to in, inter alia, Article 4(1)(b), namely ‘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’, is not considered to be a contribution of capital.

29      In the present case, in accordance with Article 3(a) of Directive 2008/7, the formation of Nova Iberomoldes, which, it is common ground, is a capital company within the meaning of Article 2 of that directive, falls, in principle, within the concept of ‘contribution of capital’. However, it follows from the order for reference that the share capital of Nova Iberomoldes was fully paid up, by the company which is its sole shareholder, through the contribution of shares held by that company in the capital of other companies, in each case representing between 50% and 100% of the share capital of those companies. As consideration for those shares, the contributing company received all of the securities representing the capital of Nova Iberomoldes.

30      In so far as those shares, thus acquired by Nova Iberomoldes, represented the majority of the voting rights of other capital companies, and in so far as the consideration for those shares were securities representing the capital of Nova Iberomoldes, the transaction in the context of which Nova Iberomoldes was formed meets the criteria laid down in Article 4(1)(b) of Directive 2008/7 and therefore constitutes, as the German Government and the European Commission have also observed, a restructuring operation, within the meaning of that provision. The fact that there is no transfer of other elements, resources, or the entirety of the equity instruments is irrelevant in that regard.

31      Therefore, in accordance with Article 5(1)(e) of Directive 2008/7, Member States must not subject capital companies to any form of indirect tax whatsoever in respect of a restructuring operation such as that at issue in the main proceedings.

32      As regards the interpretation of that concept of ‘indirect tax’, it is settled case-law that, having regard to the objective pursued by Directive 2008/7, recalled in paragraph 25 of the present judgment, Article 5 of that directive must be interpreted broadly so as to ensure that that prohibition of tax is not denied practical effect (see, to that effect, judgments of 28 June 2007, Albert Reiss Beteiligungsgesellschaft, C‑466/03, EU:C:2007:385, paragraph 39; of 19 October 2017, Air Berlin, C‑573/16, EU:C:2017:772, paragraph 31; and of 5 June 2025, Corner and Border, C‑685/23, EU:C:2025:398, paragraph 30 and the case-law cited).

33      That said, Article 5 of Directive 2008/7 does not require Member States to exempt the transactions referred to in Article 5(1) from all forms of direct tax (see, to that effect, judgment of 24 February 2022, Viva Telecom Bulgaria, C‑257/20, EU:C:2022:125, paragraph 71). In particular, the Court has already held that the harmonisation provided for by that directive does not concern direct taxes which, like corporation tax, are in principle a matter for the Member States, in compliance with EU law (see, to that effect, judgments of 26 September 1996, Frederiksen, C‑287/94, EU:C:1996:354, paragraph 21, and of 24 February 2022, Viva Telecom Bulgaria, C‑257/20, EU:C:2022:125, paragraph 70 and the case-law cited).

34      The nature of a tax, duty or charge must be determined by the Court, under EU law, according to the objective characteristics by which it is levied, irrespective of its classification under national law (see, to that effect, judgments of 13 February 1996, Bautiaa and Société française maritime, C‑197/94 and C‑252/94, EU:C:1996:47, paragraph 39; of 19 March 2002, Commission v Greece, C‑426/98, EU:C:2002:180, paragraph 23; and of 30 March 2006, Aro Tubi Trafilerie, C‑46/04, EU:C:2006:210, paragraph 26 and the case-law cited).

35      As regards the nature of the tax at issue in the main proceedings, resulting from the application of Article 2(2)(d) of the IMT Code, it should be noted at the outset that, in accordance with the settled case-law referred to in the preceding paragraph, it is irrelevant that, under national law, that tax may be understood as extending the tax laid down in Article 2(1) of that code in so far as any transaction under which a partner or shareholder is granted at least 75% of the share capital of a company owning immovable property is treated as equivalent to the concept of transfer of immovable property.

36      Furthermore, it must be noted that the tax at issue in the main proceedings differs from the category of direct taxes since it is imposed not on the collection of income or the possession of assets by a taxpayer, but on the movement of shares of companies owning immovable property, without it being decisive, in that context, which of the parties involved in the transaction relating to those shares is designated, under national law, as being liable for payment of tax.

37      More specifically, under Article 2(2)(d) of the IMT Code, specific transactions, including, inter alia, the purchase of shares in a limited liability company, are subject to tax where that company owns immovable property and where, following that purchase, the purchaser holds at least 75% of the share capital of that company. That also applies in the case of a contribution of shares of a company owning immovable property to a capital company, in return for which the contributing company receives shares of the company receiving that contribution.

38      Accordingly, IMT is levied in connection with the transfer of shares of a company owning immovable property, including where there is a contribution, to a capital company, of such shares. In the latter case, the tax falls within the scope of Article 5(1) of Directive 2008/7 (see, by analogy, judgment of 11 December 1997, Immobiliare SIF, C‑42/96, EU:C:1997:602, paragraph 25).

39      That conclusion is not called into question by the line of argument put forward by the Portuguese and German Governments, to the effect that the operative event for a tax such as that resulting from the application of Article 2(2)(d) of the IMT Code lies not in the transfer of shares in the context of transactions involving non-cash contributions, but in the economic transfer of ownership of immovable property.

40      First, in so far as those governments refer to the fact that IMT is not payable where the companies the shares of which are transferred do not own immovable property, the fact remains that that tax is levied where those companies own such property and where the other conditions laid down in Article 2(2)(d) of the IMT Code are satisfied.

41      Second, as regards the German Government’s argument that the basis of assessment for IMT corresponds, in the present case, not to the value of the shares contributed, but to the reference value of the relevant properties for tax purposes, it should be noted that the prohibition on tax laid down in Article 5 of Directive 2008/7 is in no way limited solely to taxes on a contribution as such, because, otherwise, Article 5 would risk being deprived of its effectiveness (see, to that effect, judgments of 5 March 1998, Solred, C‑347/96, EU:C:1998:87, paragraph 21 and the case-law cited; of 27 October 1998, FECSA and ACESA, C‑31/97 and C‑32/97, EU:C:1998:508, paragraph 22,; and of 29 September 1999, Modelo, C‑56/98, EU:C:1999:460, paragraph 27). The levying of IMT when there is a contribution of shares of a company owning immovable property to a capital company is equivalent, in terms of its effects, to charging that tax on that contribution (see, by analogy, judgment of 11 December 1997, Immobiliare SIF, C‑42/96, EU:C:1997:602, paragraph 31).

42      In the light of the foregoing grounds, it must be held that a tax such as that at issue in the main proceedings, resulting from the application of Article 2(2)(d) of the IMT Code, is an indirect tax that falls within the prohibition of any tax of that kind, laid down by Article 5(1) of Directive 2008/7 in respect of certain transactions, including restructuring operations.

 Article 6(1)(a) to (c) of Directive 2008/7

43      Article 6(1) of Directive 2008/7 sets out an exhaustive list of the taxes and duties, other than the capital duty referred to in Article 7 of that directive, which, in derogation from Article 5 of that directive, may be levied on capital companies in connection with the transactions referred to in that latter provision.

44      In so far as Article 6 of Directive 2008/7 is an exception to the prohibition in principle laid down in Article 5 of that directive, the provisions of Article 6 must be interpreted strictly (see, to that effect, judgments of 15 July 2004, Commission v Belgium, C‑415/02, EU:C:2004:450, paragraph 37, and of 9 October 2014, Gielen, C‑299/13, EU:C:2014:2266, paragraphs 28 and 29 and the case-law cited).

45      In the present case, the referring court seeks more specifically to ascertain whether the tax at issue in the main proceedings is capable of falling within one of the exceptions set out in Article 6(1)(a) to (c) of Directive 2008/7.

–       Article 6(1)(a) of Directive 2008/7

46      In accordance with Article 6(1)(a) of Directive 2008/7, Member States may charge ‘duties on the transfer of securities, whether charged at a flat rate or not’.

47      In that regard, it follows from the case-law of the Court that that provision allows the imposition of a tax on the transfer of securities such as shares, independently of the question of whether the company issuing those shares is listed on a stock exchange and of whether those shares are transferred on the stock exchange or directly from the transferor to the transferee (see, to that effect, judgment of 17 December 1998, Codan, C‑236/97, EU:C:1998:617, paragraph 31, and order of 6 October 2010, INMOGOLF, C‑487/09, EU:C:2010:586, paragraph 18 and the case-law cited). The Court has also held that the disposal of shares falls within the concept of transfer of securities (judgment of 7 September 2006, Organon Portuguesa, C‑193/04, EU:C:2006:519, paragraph 20).

48      However, since Article 6(1)(a) of Directive 2008/7 is a derogating provision, it is intended to be applied only to transfers of securities forming an independent transaction, and not to transfers of securities forming an incidental transaction, integral to a transaction covered by Article 5 of that directive (see, to that effect, judgments of 15 July 2004, Commission v Belgium, C‑415/02, EU:C:2004:450, paragraphs 38 and 39; of 1 October 2009, HSBC Holdings and Vidacos Nominees, C‑569/07, EU:C:2009:594, paragraph 34; and of 19 October 2017, Air Berlin, C‑573/16, EU:C:2017:772, paragraph 36).

49      In the present case, it is true that there was a transfer of shares, since the sole shareholder of Nova Iberomoldes contributed to that company, in order to pay up the latter’s capital, the shares which that shareholder held in the capital of other companies. However, that transfer was not an independent transaction, but an incidental transaction, integral to a restructuring operation, as referred to in Article 5(1)(e) of Directive 2008/7. On that point, the present case therefore differs from the case which gave rise to the order of 6 October 2010, INMOGOLF (C‑487/09, EU:C:2010:586), to which the Commission refers.

50      Therefore, a tax such as that at issue in the main proceedings does not fall within the scope of Article 6(1)(a) of Directive 2008/7.

–       Article 6(1)(b) and (c) of Directive 2008/7

51      Under Article 6(1)(b) and (c) of Directive 2008/7, Member States may charge, respectively, ‘transfer duties, including land registration taxes, on the transfer, to a capital company, of businesses or immovable property situated within their territory’ and ‘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’.

52      In that regard, it should be noted, at the outset, that a transaction such as that at issue in the main proceedings is not capable of falling within the scope of Article 6(1)(c) of Directive 2008/7, if only on the ground that the condition that assets must be transferred for a consideration other than shares in the company is not satisfied. The consideration, for the contribution of shares of other companies by the sole shareholder of Nova Iberomoldes to the latter, was the latter’s shares.

53      As regards Article 6(1)(b) of Directive 2008/7, it follows from the case-law of the Court that that provision permits the levying of duties in connection with the transfer of the right of ownership over immovable property or businesses, by reference to general and objective criteria (see, to that effect, judgment of 15 June 2006, Badischer Winzerkeller, C‑264/04, EU:C:2006:402, paragraphs 32 to 34 and the case-law cited).

54      In the present case, it is common ground that no transfer of the right of ownership took place. The two immoveable properties in question in the dispute in the main proceedings remained the property of the company the shares of which were contributed to Nova Iberomoldes by its sole shareholder.

55      The German Government submits, however, that Article 6(1)(b) of Directive 2008/7 covers not only transfers of legal ownership of immovable property, but also economic transfers which, according to that government, are treated as the same. It argues that, from an economic point of view, it is precisely an actual transfer that is taxed in the present case.

56      That line of argument cannot be accepted. As is apparent from the order for reference, the supplementary assessment for IMT at issue in the main proceedings was carried out following a business reorganisation within the group to which Nova Iberomoldes belongs. Nova Iberomoldes was formed with a view to carrying on the activities of a holding company, its share capital being paid up in full by means of shareholdings that its sole shareholder, which also carries on holding activities, held in other companies.

57      Even if, as the German Government submits, it were necessary to take an economic perspective, it appears that, in a transaction such as that at issue in the main proceedings, concerning a business reorganisation within a group of companies, not only has there been no transfer of the legal ownership of immovable property, but there has also been no transfer of the actual ownership of such property.

58      In those circumstances, Article 6(1)(b) of Directive 2008/7 is not applicable.

59      That interpretation is supported by considerations relating to the context of that provision and the objectives pursued by Directive 2008/7.

60      First, as pointed out in paragraph 44 of the present judgment, Article 6 of Directive 2008/7 constitutes a derogation from the prohibition laid down in Article 5 of that directive, with the result that, as they are exceptions to the non-taxation rule, the provisions of Article 6 must be interpreted strictly.

61      Second, as is apparent from recitals 3 and 4 of Directive 2008/7, the latter seeks, inter alia, to reduce tax obstacles to the reorganisation of undertakings (see also, by analogy, judgment of 13 October 1992, Commerz-Credit-Bank, C‑50/91, EU:C:1992:386, paragraph 11). That objective would be undermined if the position taken by the German Government were followed.

62      Therefore, a tax such as that at issue in the main proceedings does not fall within the scope of Article 6(1)(b) and (c) of Directive 2008/7.

 The prevention of tax evasion and avoidance

63      The Portuguese Government further submits that the tax resulting from the application of Article 2(2)(d) of the IMT Code is justified by the objective of preventing tax evasion and avoidance.

64      In that regard, it should be noted that Directive 2008/7 does not contain any rule specifically designed to prevent the risk of tax evasion or avoidance, but that Member States may prevent the application of EU law in circumstances entailing a fraudulent or abusive practice (see, to that effect, judgments of 8 November 2007, ING. AUER, C‑251/06, EU:C:2007:658, paragraphs 40 and 41, and of 9 July 2009, Commission v Spain, C‑397/07, EU:C:2009:436, paragraph 29 and the case-law cited).

65      However, Member States cannot rely, in that context, on general presumptions (see, to that effect, judgment of 9 July 2009, Commission v Spain, C‑397/07, EU:C:2009:436, paragraph 30 and the case-law cited).

66      It must be held that a provision such as Article 2(2)(d) of the IMT Code is based on a general presumption since, in the light of its wording, it appears to apply, without exception, to any transaction in the context of which there is a transfer of shares of companies the assets of which include immovable property, irrespective of whether or not there is concrete evidence of the existence of a fraudulent or abusive practice.

67      Therefore, as regards transactions covered by Article 5 of Directive 2008/7, the application of a provision such as Article 2(2)(d) of the IMT Code goes beyond what is necessary to achieve the objective of combating tax evasion and avoidance and is therefore not consistent with the principle of proportionality which the Member States must observe in pursuit of that objective (see, to that effect, judgment of 20 December 2017, Deister Holding and Juhler Holding, C‑504/16 and C‑613/16, EU:C:2017:1009, paragraph 56 and the case-law cited).

68      Furthermore, and in any event, the Portuguese Government has not claimed that the transaction at issue in the main proceedings was a fraudulent or abusive practice, and, moreover, there is nothing in the documents before the Court to suggest that that was the case (see, by analogy, judgment of 13 March 2025, John Cockerill, C‑135/24, EU:C:2025:176, paragraph 51).

69      In the light of all the foregoing considerations, the answer to the first to fifth questions is that Article 3(a), Article 4(1)(b), Article 5(1)(a) and (e) and Article 6(1)(a) to (c) of Directive 2008/7 must be interpreted as precluding national legislation which provides that a transaction involving the formation of a capital company the share capital of which is fully  paid  up by means of shares held in other companies owning immovable property by the contributing company, which receives, as consideration, the entire share capital of the company thus formed, is subject to tax, the basis of assessment for which is determined according to the reference value of that immoveable property for tax purposes or, where applicable, the balance sheet book value.

 The sixth question

70      In the light of the answer given to the first to fifth questions, there is no need to answer the sixth question.

 Costs

71      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.

On those grounds, the Court (First Chamber) hereby rules:

Article 3(a), Article 4(1)(b), Article 5(1)(a) and (e) and Article 6(1)(a) to (c) of Council Directive 2008/7/EC of 12 February 2008 concerning indirect taxes on the raising of capital

must be interpreted as precluding national legislation which provides that a transaction involving the formation of a capital company the share capital of which is fully paid up by means of shares held in other companies owning immovable property by the contributing company, which receives, as consideration, the entire share capital of the company thus formed, is subject to tax, the basis of assessment for which is determined according to the reference value of that immoveable property for tax purposes or, where applicable, the balance sheet book value.

[Signatures]

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*      Language of the case: Portuguese.