C41502
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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Commission v Belgium (Taxation) [2004] EUECJ C-415/02 (15 July 2004) URL: https://www.bailii.org/eu/cases/EUECJ/2004/C41502.html Cite as: [2004] EUECJ C-415/02, [2004] EUECJ C-415/2, [2004] ECR I-7215 |
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JUDGMENT OF THE COURT (Second Chamber)
15 July 2004 (1)
(Failure of a Member State to fulfil obligations - Indirect taxes - Directive 69/335/EEC - Raising of capital - Tax on stock exchange transactions - Tax on the delivery of bearer securities)
In Case C-415/02, Commission of the European Communities, represented by R. Lyal and C. Giolito, acting as Agents, with an address for service in Luxembourg,applicant,
v
Kingdom of Belgium, represented by A. Snoecx, acting as Agent, assisted by B. van de Walle de Ghelcke, avocat,defendant,
APPLICATION for a declaration that: - by imposing the tax on stock exchange transactions on applications made in Belgium for new securities issued when a company or investment fund is being set up or following the completion of an increase in capital or as part of a loan issue, and - by imposing the tax on the delivery of bearer securities on the physical delivery of bearer securities relating to Belgian or foreign Government stocks, in the case of new securities issued when a company or investment fund is being set up or following the completion of an increase in capital or as part of a loan issue, the Kingdom of Belgium has failed to fulfil its obligations under Article 11 of Council Directive 69/335/EEC of 17 July 1969 concerning indirect taxes on the raising of capital (OJ, English Special Edition 1969 (II), p. 412), as amended by Council Directive 85/303/EEC of 10 June 1985 (OJ 1985 L 156, p. 23),THE COURT (Second Chamber),
having regard to the report of the Judge-Rapporteur,
after hearing the Opinion of the Advocate General at the sitting on 15 January 2004,
gives the following
- by imposing the tax on stock exchange transactions on applications made in Belgium for new securities issued when a company or investment fund is being set up or following the completion of an increase in capital or as part of a loan issue, and - by imposing the tax on the delivery of bearer securities on the physical delivery of bearer securities relating to Belgian or foreign Government stocks, in the case of new securities issued when a company or investment fund is being set up or following the completion of an increase in capital or as part of a loan issue, the Kingdom of Belgium has failed to fulfil its obligations under Article 11 of Council Directive 69/335/EEC of 17 July 1969 concerning indirect taxes on the raising of capital (OJ, English Special Edition 1969 (II), p. 412), as amended by Council Directive 85/303/EEC of 10 June 1985 (OJ 1985 L 156, p. 23) (hereinafter -Directive 69/335-).
-Member States shall not subject to any form of taxation whatsoever: (a) the creation, issue, admission to quotation on a stock exchange, making available on the market or dealing in stocks, shares or other securities of the same type, or of the certificates representing such securities, by whomsoever issued; (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.-
-Notwithstanding Articles 10 and 11, Member States may charge: (a) duties on the transfer of securities, whether charged at a flat rate or not; --.
-[Indirect] taxes [on capital movements] include, first, those on the raising of capital and, second, those on transactions in securities. This draft directive concerns indirect taxes on the raising of capital, a category which includes capital duty on companies- own capital, stamp duty on national securities, stamp duty charged on the introduction or issue on the national market of securities of foreign origin, and other indirect taxes with similar characteristics. As regards indirect taxes on transactions in securities, such as taxes on stock exchange transactions, they will form the subject-matter of another draft directive. This proposal therefore does not affect them.-
-The Member States shall take the necessary steps to exempt from the tax the following transactions: (a) the issue of securities, and the first acquisition of securities immediately consequent upon such issues;
--.
National legislation
-The following transactions, concluded or executed in Belgium in respect of Belgian or foreign Government stocks shall be subject to the tax on stock exchange transactions: (1) any sale or purchase and, more generally, any disposal or acquisition for valuable consideration; (2) any allotment to a subscriber [délivrance] following an issue, offer or sale by means of a public offer.-
-Any delivery of bearer securities in respect of Belgian or foreign Government stocks shall be subject to the tax on the delivery of bearer securities. -Delivery- means any physical delivery of the security which takes place following: (1) subscription; (2) acquisition for valuable consideration; (3) conversion of registered securities into bearer securities; (4) withdrawal of securities on deposit for safe custody and administration with a lending institution, a stockbroker, an asset management company or the Caisse interprofessionnelle de dépôts et de virements de titres (Interprofessional agency for deposit and payment of securities).-
The complaint concerning the tax on stock exchange transactionsArguments of the parties
Findings of the Court
The complaint concerning the tax on the delivery of bearer securitiesArguments of the parties
Findings of the Court
- by imposing the tax on stock exchange transactions on applications made in Belgium for new securities issued when a company or investment fund is being set up or following the completion of an increase in capital or as part of a loan issue, and - by imposing the tax on the delivery of bearer securities on the physical delivery of bearer securities relating to Belgian or foreign Government stocks, in the case of new securities issued when a company or investment fund is being set up or following the completion of an increase in capital or as part of a loan issue, the Kingdom of Belgium has failed to fulfil its obligations under Article 11 of Directive 69/335.
On those grounds,
THE COURT (Second Chamber)
hereby:1. Declares that, - by imposing the tax on stock exchange transactions on applications made in Belgium for new securities issued when a company or investment fund is being set up or following the completion of an increase in capital or as part of a loan issue, and - by imposing the tax on the delivery of bearer securities on the physical delivery of bearer securities relating to Belgian or foreign Government stocks, in the case of new securities issued when a company or investment fund is being set up or following the completion of an increase in capital or as part of a loan issue, the Kingdom of Belgium has failed to fulfil its obligations under Article 11 of Council Directive 69/335/EEC of 17 July 1969 concerning indirect taxes on the raising of capital, as amended by Council Directive 85/303/EEC of 10 June 1985; 2. Orders the Kingdom of Belgium to pay the costs.
Timmermans |
Gulmann |
Schintgen |
Macken |
Colneric |
|
R. Grass |
C.W.A. Timmermans |
Registrar |
President of the Second Chamber |
1 - Language of the case: French.