Opinion of the Advocate General — ECLI:EU:C:1997:511
Date: 1997-10-23
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Taxation;Indirect taxation
Procedure: Reference for a preliminary ruling
Origin: Spain

Summary of the Judgmen t 
1. Tax provisions — Harmonisation of laws — Indirect taxes on the raising of capital — Direc­
tive 69/335 — Levy of a charge on a notarial deed recording the contribution of part of the 
share capital paid up after the formation of a company, despite the fact that capital duty had 
already been charged on the whole of the share capital at the time of formation — Not per­
missible 
(Council Directive 69/335, Art. 10) 
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SUMMARY — CASE C-347/96 
2. Tax provisions — Harmonisation of laws — Indirect taxes on the raising of capital — Direc­
tive 69/335 — Article 10 — Direct effect 
(Council Directive 69/335, Art. 10) 
1. Properly construed, Article 10 of Direc­
tive 69/335 concerning indirect taxes on 
the raising of capital precludes the levying 
of 0.5% duty on the notarial deed record­
ing the contribution of part of the share 
capital paid up after the formation of a 
capital company, where duty of 1% has 
already been charged on the whole of the 
nominal value of the share capital at the 
time of formation. 
That provision prohibits not only capital 
duty, but also indirect taxes with the same 
characteristics. In this respect, although 
the duty on documented legal transac­
tions is a general indirect tax, it is none 
the less charged on the notarial deeds 
necessary for the registration of the pay­
ment of the part of the share capital yet 
to be contributed and, accordingly, for 
the paying up in full of the shares. It is 
therefore a tax imposed on account of an 
essential formality connected with a com­
pany's legal form. Furthermore, even if 
neither the payment of the outstanding 
part of the share capital nor its recording 
by notarial deed constitutes a preliminary 
formality required before a capital com­
pany can carry on business, the fact 
remains that in order for the company to 
carry on business it is necessary to regis­
ter the contribution of previously unpaid 
share capital. It follows that although the 
Member States may postpone the charg­
ing of capital duty until the contributions 
have been effected, they may not impose 
taxes on a document recording the subse­
quent contribution to a capital company 
of part of the share capital, which has 
already borne capital duty. 
2. Article 10 of Directive 69/335 gives rise 
to rights on which individuals may rely 
before national courts. Those courts are 
obliged to leave unapplied provisions of 
national law incompatible therewith. The 
prohibition laid down in Article 10 of 
the Directive is expressed in sufficiently 
precise and unconditional terms to be 
invoked by individuals in their national 
courts in order to contest a provision 
of national law which infringes that 
directive. 
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