ORDER OF THE COURT

(Second Chamber)

of 5 February 2004

in Case C-357/02 (reference for a preliminary ruling from the Supremo Tribunal Administrativo): Fazenda Pública v SONAE Distribuição SGPS SA  (1)

(Article 104(3) of the Rules of Procedure - Directive 69/335/EEC - Indirect taxes on the raising of capital - Tax on over-the-counter share transfers)

(2004/C 94/28)

Language of the case: Portuguese

In Case C-357/02: reference to the Court under Article 234 EC by the Supremo Tribunal Administrativo (Supreme Administrative Court) (Portugal) in the proceedings pending before that court between Fazenda Pública and SONAE Distribuição SGPS SA for a preliminary ruling on the interpretation of Articles 11 and 12 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), composed of: V. Skouris, acting for the President of the Second Chamber, R. Schintgen (Rapporteur) and N. Colneric, Judges; A.Tizzano, Advocate General; R. Grass, Registrar made an order on 5 February 2004, the operative part of which is as follows:

Articles 11 and 12 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 as meaning that they do not preclude the imposition of a tax on over-the-counter share transfers where the amount of the tax increases directly, and without an upper limit, in proportion to the amount of the underlying transaction.

(1)  OJ C 289 of 23 November 2002