Keywords
Summary

Keywords

1 Tax provisions - Harmonization of laws - Indirect taxes on the raising of capital - Registration of capital companies - Duties paid by way of fees or dues - Concept - Charges in direct proportion to the capital raised - Excluded

(Council Directive 69/335, Art. 12(1)(e))

2 Tax provisions - Harmonization of laws - Indirect taxes on the raising of capital - Charges levied in breach of Directive 69/335 - Recovery - Procedures - Application of national law - Limits - Application of a principle of national law excluding the recovery of charges levied in breach of Community law over a long period and without the knowledge of either the national authorities or the persons liable to pay the charges - Not permissible

(Council Directive 69/335)

3 Tax provisions - Harmonization of laws - Indirect taxes on the raising of capital - Charges levied in breach of Directive 69/335 - Recovery - Limitation period - Application of national law - Permissible - Conditions

(Council Directive 69/335)

4 Tax provisions - Harmonization of laws - Indirect taxes on the raising of capital - Directive 69/335 - Articles 10 and 12(1)(e) - Direct effect

(Council Directive 69/335, Arts 10 and 12(1)(e))

Summary

5 On a sound construction of Article 12(1)(e) of Directive 69/335 concerning indirect taxes on the raising of capital, in order for charges levied on registration of public and private limited companies and on their capital being increased to be by way of fees or dues, their amount must be calculated solely on the basis of the cost of the formalities in question. It may, however, also cover the costs of minor services performed without charge. In calculating their amount, a Member State is entitled to take account of all the costs related to the effecting of registration, including the proportion of the overheads which may be attributed thereto. Furthermore, a Member State may impose flat-rate charges and fix their amount for an indefinite period, provided that it checks at regular intervals that they continue not to exceed the average cost of the registrations at issue. It follows that charges with no upper limit which increase directly in proportion to the nominal value of the capital raised cannot amount to duties paid by way of fees or dues within the meaning of Article 12(1)(e) of the directive, since the amount of such charges will generally bear no relation to the costs actually incurred by the authority on the registration formalities.

6 Community law precludes actions for the recovery of charges levied in breach of Directive 69/335 from being dismissed on the ground that those charges were imposed as a result of an excusable error by the authorities of the Member State inasmuch as they were levied over a long period without either those authorities or the persons liable to them having been aware that they were unlawful. While the recovery of sums levied in breach of Community law may, in the absence of Community rules governing the matter, be sought only under the substantive and procedural conditions laid down by the national law of the Member States, those conditions must nevertheless be no less favourable than those governing similar domestic claims nor render virtually impossible or excessively difficult the exercise of rights conferred by Community law. The application of a general principle of national law under which the courts of a Member State should dismiss claims for the recovery of charges levied over a long period in breach of Community law without either the authorities of that State or the persons liable to pay the charges having been aware that they were unlawful, would make it excessively difficult to obtain recovery of charges which are contrary to Community law and, moreover, would have the effect of encouraging infringements of Community law which have been committed over a long period.

7 Community law, as it now stands, does not prevent a Member State which has not properly transposed Directive 69/335 from resisting actions for the repayment of charges levied in breach thereof by relying on a limitation period under national law which runs from the date on which the charges in question became payable, provided that such a period is not less favourable for actions based on Community law than for actions based on national law and does not render virtually impossible or excessively difficult the exercise of rights conferred by Community law.

8 Article 10 of Directive 69/335 in conjunction with Article 12(1)(e) thereof gives rise to rights on which individuals may rely before national courts. The prohibition laid down in Article 10 and the derogation from that prohibition in Article 12(1)(e) are expressed in sufficiently precise and unconditional terms to be invoked by individuals in their national courts in order to contest a provision of national law which infringes the directive.