Judgment — ECLI:EU:C:2002:472
Date: 2002-09-10
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Taxation;Indirect taxation
Concepts: Indirect taxation on the raising of capital;Recovery of undue payment
Procedure: Reference for a preliminary ruling
Origin: Italy

SUMMARY — JOINED CASES C-216/99 AND C-222/99 
Summary of the Judgment 
1. Tax provisions — Harmonisation of laws — Indirect taxes on the raising of 
capital — Registration of capital companies — Retroactive charges for the regis­
tration of company documents in the register of companies, not constituting capital 
duty or duties paid by way of fees or dues — Not permissible — Duties paid by way 
of fees or dues — Definition 
(Council Directive 69/335, Arts 10 and 12(1)(e)) 
2. Community law — Direct effect — National duties incompatible with Community 
law — Repayment — Application of a time-limit under national law — Permis­
sible — Conditions 
3. Community law — Direct effect — National duties incompatible with Community 
law — Repayment — National provisions affecting the repayment of such charges 
specifically and less favourably than those which would otherwise apply — Not 
permissible 
1. Article 10 of Directive 69/335 concern­
ing indirect taxes on the raising of 
capital must be interpreted as pro­
hibiting, subject to the exceptions in 
Article 12 of that directive, retroactive 
charges for the registration of company 
documents in the register of companies 
where they do not constitute capital 
duty permitted by that directive. 
Article 12(1)(e) of the directive must 
be interpreted as meaning that such 
retroactive charges do not constitute 
duties paid by way of fees or dues 
permitted by that provision where the 
registrations in the register of com­
panies for which they are charged have 
already given rise to charges for which 
the retroactive charges are intended to 
be a substitute but which are not 
reimbursed to those who have paid 
them. Otherwise, for such retroactive 
charges to constitute duties paid by 
way of fees or dues permitted by 
Article 12(1)(e) of the directive, their 
amounts, which may vary according to 
the legal form of the company, must be 
calculated solely on the basis of the 
cost of the formalities in question, 
although they may also cover the costs 
of minor operations carried out free of 
charge, and must take account of any 
other charges paid in parallel which are 
also intended to pay for the same 
service rendered. In calculating those 
amounts, a Member State is entitled to 
take into account all the costs linked 
with the registration operations, 
including the share of overheads 
attributable to them. A Member State 
also has the option of introducing 
flat-rate charges and setting their 
amounts for an indeterminate period, 
I - 6762 
PRISCO AND CASER 
as long as it ensures at regular intervals 
that those amounts still do not exceed 
the average cost of the operations 
concerned. 
(see para. 57, operative part 1) 
2. Community law does not prohibit a 
Member State from resisting actions 
for repayment of charges levied in 
breach of Community law by relying 
on a time-limit under national law of 
three years, by way of derogation from 
the ordinary rules governing actions 
between private individuals for the 
recovery of sums paid but not due, 
for which the period allowed is more 
favourable, provided, first, that that 
time-limit applies in the same way to 
actions based on Community law for 
repayment of such charges as to those 
based on national law, and, second, 
that it does render practically imposs­
ible or excessively difficult the exercise 
of rights conferred by Community law. 
(see paras 69-70, operative part 2) 
3. Community law precludes the adop­
tion by a Member State of provisions 
making repayment of a tax held to be 
contrary to Community law by a judg­
ment of the Court, or whose incom­
patibility with Community law is 
apparent from such a judgment, subject 
to conditions relating specifically to 
that tax which are less favourable than 
those which would otherwise be 
applied to repayment of the tax in 
question. 
(see para. 79, operative part 3) 
I - 6763