Judgment — ECLI:EU:C:2012:86
Date: 2012-02-16
Language of the case: Polish
Court formation: Fourth Chamber
Subject matter: Taxation;Indirect taxation
Procedure: Reference for a preliminary ruling
Origin: Poland

Summary of the Judgment 1. Tax provisions — Harmonisation of laws — Indirect taxes on the raising of capital — Capital duty charged on capital companies — Exempted transactions (Council Directive 69/335, as amended by Directive 85/303, Art. 7(1)) 2. Tax provisions — Harmonisation of laws — Indirect taxes on the raising of capital — Capital duty charged on capital companies — Amount on which capital duty is charged (Council Directive 69/335, Art. 5(3), first indent) 1. In the case of a State which acceded to the European Union on 1 May 2004, there being no derogating provisions in the Act of Accession of that State to the European Union or in any other European Union document, Article 7(1) of Directive 69/335 concerning indirect taxes on the raising of capital, as amended by Directive 85/303, must be interpreted as meaning that the mandatory exemption provided for in that provision applies only to those transactions coming within the scope of that directive, as amended, that, on 1 July 1984, were exempted, in that State, from capital duty or were subject to that duty at a reduced rate of 0.50% or less. (see para. 33, operative part 1) 2. The first indent of Article 5(3) of Directive 69/335 concerning indirect taxes on the raising of capital, which excludes ‘the amount of the assets belonging to the capital company which are allocated to the increase in capital and which have already been subjected to capital duty’ from the amount on which duty is charged, must be interpreted as meaning that it applies irrespective of whether the assets in question are assets of the company which has had an increase in capital or assets coming from another company which have increased that capital. A condition requiring those assets to belong to the company which has had an increase in capital would be contrary to the literal interpretation of the wording of that provision. Such a condition would also run counter to the objective pursued by that provision, which excludes those amounts which have already been subjected to capital duty from the basis of assessment for taxation in order to avoid double taxation of those amounts, with the aim of promoting the free movement of capital. The addition of a further condition to those imposed by the wording of the first indent of Article 5(3) of Directive 69/335, to the effect that the assets in question must also belong to the company which has had an increase in capital, would allow for double taxation of the same amount if the transaction in question were to involve separate companies. (see paras 36-38, operative part 2)