10.11.2007   

EN

Official Journal of the European Union

C 269/31

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Declare that:

The Kingdom of Spain has failed to fulfil its obligations under Directive 69/335/EEC (1), of 17 July 1969.

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Order the Kingdom of Spain to pay the costs.

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Directive 69/335 maintains the status quo regarding the freedom of Member States to re-introduce a capital duty or once again to subject transactions, currently exempt, to that tax. Consequently, Spain cannot abolish its exemptions and tax all transactions to which the special scheme of Royal Decree No 4/2004 is applicable, but which are excluded from the scope of former Article 7(1)(b) and (b)a. Spain must apply the exemption of Article 45(1)(B)10 to all transactions within the scope of the special scheme of Royal Decree No 4/2004, whether in fact that scheme applies or not.

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Article 4 of Directive 69/335 lays down an exhaustive list of transactions subject to capital duty. In accordance with Article 4(1)(g) the transfer of the effective centre of management of a company, firm, association or legal person which is considered in the host Member State, for the purposes of charging capital duty, as a capital company, although it is not so considered in the Member State of origin, is subject to capital duty. Consequently Spain cannot tax the transfer of the effective centre of management or the registered office of a capital company which is not subject to a similar tax in its country of origin. The transfer, by a capital company, of its seat to another Member State is not such as to generate capital duty, even where the Member State in which the company was formed did not claim that tax. In addition, nothing in the Spanish legislation indicates that it applies solely in cases of tax evasion or fraud.

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Spain cannot subject to capital duty that part of the capital used to carry out business transactions in Spain through subsidiaries or fixed places of business. As is clear from Article 2(1) of Directive 69/335 Spain cannot subject to capital tax companies whose effective centre of management is situated in another Member State, and not in Spain. Article 2(3) of Directive 69/335 reserves measures, such as that to be applied by Spain, to the specific case of a company whose registered office and effective centre of management is in a third country. As regards the issue of fraud or tax evasion, the Commission emphasises that the Spanish provisions apply without any limitation or distinction according to whether there is tax evasion or fraud. Consequently Spain cannot validly claim such a justification.