Judgment — ECLI:EU:C:2002:590
Date: 2002-10-17
Language of the case: German
Court formation: Sixth Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Taxation;Indirect taxation
Concepts: Indirect taxation on the raising of capital
Procedure: Reference for a preliminary ruling
Origin: Austria

Summary of the Judgment 
Tax provisions — Harmonisation of laws — Indirect taxes on the raising of capital — 
Capital duty levied on companies — Applicability to the acquisition of dividend 
certificates issued by a capital company — Acquisition by a non-member — Not 
relevant 
(Council Directive 69/335, Arts 4(l)(d) and 5(1)(a)) 
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SUMMARY — CASE C-138/00 
The issue by a capital company of dividend 
certificates which confer on their holder a 
share in the profits or a share in the surplus 
upon liquidation of the issuing company 
comes, as a rule, within the scope of 
Article 4(1)(d) of Directive 69/335 con­
cerning indirect taxes on the raising of 
capital, under which an increase in the 
assets of a capital company by contribution 
of assets of any kind, in consideration of 
rights of the same kind as those of 
members, is to be subject to capital duty. 
The fact that the acquirer of the dividend 
certificates is not a member of the issuing 
company is not such as to affect that 
interpretation. 
While it is true, in that regard, that 
Article 5(1)(a) of the Directive provides 
that capital duty is to be charged on the 
value of the assets contributed ‘by the 
members’, the limitation of the scope of 
Article 4(1)(d) which would follow from a 
literal interpretation of the former of those 
provisions has, apart from its wording, no 
basis in Directive 69/335, and the wording 
of Article 4 thereof, concerning its material 
scope, must prevail over that of Article 5 
relating to the basis of assessment of capital 
duty. 
(see paras 26-31, 34) 
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