Opinion of the Advocate General — ECLI:EU:C:1997:321
Date: 1997-06-26
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Taxation;Indirect taxation
Procedure: Reference for a preliminary ruling
Origin: Denmark

Summary of the Judgment 
1. Tax provisions — Harmonization of laws — Indirect taxes on the raising of capital— Reg­
istration of capital companies — Duties paid by way of fees or dues — Concept — Charges in 
direct proportion to the capital raised — Excluded 
(Council Directive 69/335, Art. 12(1)(e)) 
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SUMMARY — CASE C-188/95 
2. Tax provisions — Harmonization of laws — Indirect taxes on the raising of capital — 
Charges levied in breach of Directive 69/335 — Recovery — Procedures — Application of 
national law — Limits — Application of a principle of national law excluding the recovery of 
charges levied in breach of Community law over a long period and without the knowledge of 
either the national authorities or the persons liable to pay the charges — Not permissible 
(Council Directive 69/335) 
3. Tax provisions — Harmonization of laws — Indirect taxes on the raising of capital— 
Charges levied in breach of Directive 69/335 — Recovery — Limitation period — Applica­
tion of national law — Permissible — Conditions 
(Council Directive 69/335) 
4. Tax provisions — Harmonization of laws — Indirect taxes on the raising of capital — 
Directive 69/335 — Articles 10 and 12(l)(e) — Direct effect 
(Council Directive 69/335, Arts 10 and 12(l)(e)) 
1. On a sound construction of Article 
12(l)(e) of Directive 69/335 concerning 
indirect taxes on the raising of capital, in 
order for charges levied on registration of 
public and private limited companies and 
on their capital being increased to be by 
way of fees or dues, their amount must be 
calculated solely on the basis of the cost 
of the formalities in question. It may, 
however, also cover the costs of minor 
services performed without charge. In 
calculating their amount, a Member State 
is entitled to take account of all the costs 
related to the effecting of registration, 
including the proportion of the overheads 
which may be attributed thereto. Further­
more, a Member State may impose flat-
rate charges and fix their amount for an 
indefinite period, provided that it checks 
at regular intervals that they continue not 
to exceed the average cost of the registra­
tions at issue. It follows that charges with 
no upper limit which increase directly in 
proportion to the nominal value of the 
capital raised cannot amount to duties 
paid by way of fees or dues within the 
meaning of Article 12(1 )(e) of the direc­
tive, since the amount of such charges 
will generally bear no relation to the costs 
actually incurred by the authority on the 
registration formalities. 
2. Community law precludes actions for the 
recovery of charges levied in breach of 
Directive 69/335 from being dismissed on 
the ground that those charges were 
imposed as a result of an excusable error 
by the authorities of the Member State 
inasmuch as they were levied over a long 
period without either those authorities or 
the persons liable to them having been 
aware that they were unlawful. While the 
recovery of sums levied in breach of 
Community law may, in the absence of 
Community rules governing the matter, 
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be sought only under the substantive and 
procedural conditions laid down by the 
national law of the Member States, those 
conditions must nevertheless be no less 
favourable than those governing similar 
domestic claims nor render virtually 
impossible or excessively difficult the 
exercise of rights conferred by Commu­
nity law. The application of a general 
principle of national law under which the 
courts of a Member State should dismiss 
claims for the recovery of charges levied 
over a long period in breach of Commu­
nity law without either the authorities of 
that State or the persons liable to pay the 
charges having been aware that they were 
unlawful, would make it excessively diffi­
cult to obtain recovery of charges which 
are contrary to Community law and, 
moreover, would have the effect of 
encouraging infringements of Commu­
nity law which have been committed over 
a long period. 
3. Community law, as it now stands, does 
not prevent a Member State which has 
not properly transposed Directive 69/335 
from resisting actions for the repayment 
of charges levied in breach thereof by 
relying on a limitation period under 
national law which runs from the date on 
which the charges in question became 
payable, provided that such a period is 
not less favourable for actions based on 
Community law than for actions based 
on national law and does not render vir­
tually impossible or excessively difficult 
the exercise of rights conferred by Com­
munity law. 
4. Article 10 of Directive 69/335 in conjunc­
tion with Article 12(1)(e) thereof gives 
rise to rights on which individuals may 
rely before national courts. The prohibi­
tion laid down in Article 10 and the dero­
gation from that prohibition in Article 
12(1)(e) are expressed in sufficiently pre­
cise and unconditional terms to be 
invoked by individuals in their national 
courts in order to contest a provision of 
national law which infringes the directive. 
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