Opinion of the Advocate General — ECLI:EU:C:2002:79
Date: 2002-02-07
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Taxation;Indirect taxation
Procedure: Reference for a preliminary ruling
Origin: Austria

Summary of the Judgment 
1. Tax provisions — Harmonisation of laws — Indirect taxes on the raising of 
capital — Capital duty levied on companies — Increase in capital — Price of 
I - 8837 
SUMMARY — CASE C-339/99 
acquisition of a shareholding exceeding its nominal value — Amounts paid constitute 
the 'contribution' for the purposes of Article 4(l)(c) of Directive 69/335 — Condition 
(Council Directive 69/335, Art. 4(l)(c)) 
2. Tax provisions — Harmonisation of laws — Indirect taxes on the raising of 
capital — Capital duty levied on companies — Application to payments made by a 
parent company for the acquisition by its subsidiary of new shares issued by a capital 
company — Conditions 
(Council Directive 69/335, Art. 4(l)(c)) 
3. Tax provisions — Harmonisation of laws — Indirect taxes on the raising of 
capital — Capital duty levied on companies — Application to payments made by a 
new member to subsidiaries of a capital company increasing its capital 
(Council Directive 69/335, Art. 4(1) (c)) 
4. Tax provisions — Harmonisation of laws — Indirect taxes on the raising of 
capital — Capital duty levied on companies — Application to contributions made 
subject to fulfilment of a condition precedent only after condition fulfilled 
(Council Directive 69/335, Art. 4(1)(c)) 
5. Tax provisions — Harmonisation of laws — Indirect taxes on the raising of 
capital — Capital duty levied on companies — Basis of assessment — Capital duty 
not to be taken into account 
(Council Directive 69/335, Art. 5(1) (a))) 
1. Where, on an increase in the capital of 
a capital company, the payment of a 
price to acquire a shareholding, which 
is greater than the nominal value of 
that holding, is an essential condition 
of the acquisition of that holding, the 
various payments made to make up 
that price are to be regarded as con­
stituting the contribution conferring 
entitlement to that holding and, there­
fore, as coming within the scope of 
Article 4(l)(c) of Directive 69/335 con­
cerning indirect taxes on the raising of 
capital. 
(see para. 30) 
I - 8838 
ESTAG 
2. Article 4(1 )(c) of Directive 69/335 con­
cerning indirect taxes on the raising of 
capital, under which 'contributions of 
assets of any kind' are subjected to 
capital duty, is to be interpreted as 
meaning that such expression covers 
the payments which a parent company 
makes to a capital company, which is 
increasing its capital by the issue of 
new shares, to enable the acquisition of 
those shares by a subsidiary of that 
parent company, to the extent that, 
first, the company which has con­
tracted to make the payments in order 
to acquire a holding in the capital 
company is the subsidiary of the com­
pany which has actually made those 
payments and, second, such payment 
has discharged the liability of that 
subsidiary. 
(see paras 39, 41, operative part 1) 
3. Article 4(1)(c) of Directive 69/335 con­
cerning indirect taxes on the raising of 
capital, under which 'contributions of 
assets of any kind' are subjected to 
capital duty, is to be interpreted as 
meaning that such expression covers 
the additional payments which a new 
member makes not to the capital com­
pany which is increasing its capital, but 
to subsidiaries of that company, when 
it is clear from the circumstances of the 
case that, from an economic point of 
view, the real recipient of those pay­
ments is that company. 
(see para. 47, operative part 2) 
4. Payments made for the purposes of 
increasing the capital of a capital com­
pany but subject to the fulfilment of a 
condition precedent amount to 'con­
tributions', within the meaning of 
Article 4(1 )(c) of Directive 69/335 con­
cerning indirect taxes on the raising of 
capital, only after that condition has 
been fulfilled. 
(see para. 52, operative part 3) 
5. In determining the basis of assessment 
to be applied under Article 5(1 )(a) of 
Directive 69/335 concerning indirect 
taxes on the raising of capital, the 
amount of the capital duty is not to be 
taken into account and therefore does 
not amount to a 'liability' or an 
'expense' within the meaning of that 
provision. 
(see paras 55-56, operative part 4) 
I - 8839