Request for a preliminary ruling from the Tribunal Arbitral Tributário (Centro de Arbitragem Administrativa – CAAD) (Portugal) lodged on 15 November 2023 – Corner and Border SA v Autoridade Tributária e Aduaneira

(Case C-685/23, Corner and Border)

Language of the case: Portuguese

Referring court

Tribunal Arbitral Tributário (Centro de Arbitragem Administrativa – CAAD)

Parties to the main proceedings

Applicant: Corner and Border SA

Defendant: Autoridade Tributária e Aduaneira

Questions referred

Must Article 5(2)(b) of Council Directive 2008/7/EC ¹ 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?

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?

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?

Must Article 6(1)(d) of Council Directive 2008/7/EC 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?

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¹ Council Directive 2008/7/EC of 12 February 2008 concerning indirect taxes on the raising of capital (OJ 2008 L 46, p. 11).