![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
Court of Justice of the European Communities (including Court of First Instance Decisions) |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just £5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Optimus - Telecomunicacoes (Taxation) [2007] EUECJ C-366/05 (21 June 2007) URL: https://www.bailii.org/eu/cases/EUECJ/2007/C36605.html Cite as: [2007] EUECJ C-366/5, [2007] ECR I-4985, [2007] EUECJ C-366/05 |
[New search] [Contents list] [Printable version] [Help]
(Indirect taxes on the raising of capital Directive 69/335/EEC, as amended by Directive 85/303/EEC Article 7(1) Capital duty Exemption Conditions Situation as at 1 July 1984)
In Case C-366/05,
REFERENCE for a preliminary ruling under Article 234 EC from the Supremo Tribunal Administrativo (Portugal), made by decision of 6 July 2005, received at the Court on 29 September 2005, in the proceedings
Optimus Telecomunicações SA
Fazenda Pública,
intervening party:
Ministério Público,
composed of K. Lenaerts, President of Chamber, E. Juhász (Rapporteur), R. Silva de Lapuerta, G. Arestis and T. von Danwitz, Judges,
Advocate General: E. Sharpston,
Registrar: M. Ferreira, Principal Administrator,
having regard to the written procedure and further to the hearing on 26 October 2006,
after considering the observations submitted on behalf of:
Optimus Telecomunicações SA, by J. Vieira Peres and C. Botelho Moniz, advogados,
the Portuguese Government, by L. Fernandes, S. Vasques and A. Ferreira, acting as Agents,
the Commission of the European Communities, by R. Lyal and M. Afonso, acting as Agents,
after hearing the Opinion of the Advocate General at the sitting on 25 January 2007,
gives the following
Legal context
Community legislation
'Apart from capital duty, Member States shall not charge, with regard to companies, firms, associations or legal persons operating for profit, any taxes whatsoever:
(a) in respect of the transactions referred to in Article 4;
...
(c) in respect of registration or any other formality required before the commencement of business to which a company, firm, association or legal person operating for profit may be subject by reason of its legal form.'
'... the best solution for attaining these objectives would be to abolish capital duty; ... however, the losses of revenue which would result from such a measure are unacceptable for certain Member States; ... the Member States must therefore be given the opportunity to exempt from or subject to capital duty all or part of the transactions coming within its scope, ...
... there should be mandatory exemption for the transactions currently subject to the reduced rate of capital duty;
... on 1 July 1984 no capital duty existed in Greece; ... for this reason, provision should be made for the possibility of introducing such duty in Greece and of exempting certain transactions from it'.
'[in] Article 4(2):
the introductory phrase is replaced by the following:
-2. The following transactions may, to the extent that they were taxed at the rate of 1% as at 1 July 1984, continue to be subject to capital duty:'
the following subparagraph is added at the end:
'However, the Hellenic Republic shall determine which of the transactions listed above it will subject to capital duty';
(2) Article 7 is replaced by the following:
'Article 7
1. Member States shall exempt from capital duty transactions, other than those referred to in Article 9, which were, as at 1 July 1984, exempted or taxed at a rate of 0.50% or less.
The exemption shall be subject to the conditions which were applicable, on that date, for the grant of the exemption or, as the case may be, for imposition at a rate of 0.50% or less.
The Hellenic Republic shall determine which transactions it shall exempt from capital duty.
2. Member States may either exempt from capital duty all transactions other than those referred to in paragraph 1 or charge duty on them at a single rate not exceeding 1%.
...'
(3) In Article 8, the introductory phrase shall be replaced by the following:
'Subject to Article 7(1), Member States may exempt from capital duty the transactions referred to in Article 4(1) and (2) concerning: ...'. '
The national legislation
The dispute in the main proceedings and the questions referred for a preliminary ruling
'(1) Must Article 7(1) of Directive 69/335 ..., as amended by Directive 85/303 ..., be interpreted restrictively so as to impose, as a precondition for the obligation which it imposes on Member States to exempt certain transactions involving the raising of capital, the requirement that the transactions in question must be those which, under the wording of the directive prior to 1985, could be exempted or taxed at a reduced rate that is to say only those referred to in Article 4(2) and Article 8 and which, in addition, were in that situation as at 1 July 1984?
(2) Must Article 7(1) of Directive 69/335 ... , as amended by Directive 85/303 ... and Article 10 thereof be interpreted to the effect that they prohibit the levying of stamp duty, by virtue of national legislation such as Decree Law No 322-B/2001 of 14 December 2001, which inserted paragraph 26 - Capital Duty in the General Table of Stamp Duty, on a limited company governed by Portuguese law when its capital is increased, by payments in cash, when, as at 1 July 1984, that transaction was subject to that duty but was exempted from it?'
The questions referred for a preliminary ruling
The first question
The second question
Costs
On those grounds, the Court (Fourth Chamber) hereby rules:
1. In the case of a State such as the Portuguese Republic, which acceded to the European Communities with effect from 1 January 1986, in the absence of derogating provisions in the Act of Accession of that State or in another Community document, Article 7(1) 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, must be interpreted to mean that the mandatory exemption for which it provides applies to all transactions falling within the scope of Directive 69/335 which, on 1 July 1984, were exempted, in that State, from capital duty or which were subject to that duty at a reduced rate of 0.50% or less.
2. In the case of a State such as the Portuguese Republic, which acceded to the European Communities with effect from 1 January 1986, Articles 7(1) and 10 of Directive 69/335, as amended by Directive 85/303, prohibit the introduction, after 1 January 1986, of stamp duty on a transaction increasing share capital falling within the scope of Directive 69/335 which, on 1 July 1984, was exempted from that duty under national law.
[Signatures]
* Language of the case: Portuguese.