Opinion of the Advocate General — ECLI:EU:C:2001:108
Date: 2001-02-20
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Taxation;Indirect taxation
Procedure: Reference for a preliminary ruling
Origin: Portugal

Summary of the Judgment 
1. Tax provisions — Harmonisation of laws — Indirect taxes on the raising of 
capital — Taxation for the purposes of Directive 69/335 — Meaning — Charges 
for registering an increase in the share capital of a capital company which contribute to 
the State budget — Included 
(Council Directive 69/335) 
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SUMMARY — CASE C-206/99 
2. Tax provisions — Harmonisation of laws — Indirect taxes on the raising of 
capital — Entry of an increase in the share capital of a capital company in a 
commercial register — Essential formality — Levying of registration charges — Not 
permissible 
(Council Directive 69/335, Art. 10(c)) 
3. Tax provisions —• Harmonisation of laws — Indirect taxes on the raising of 
capital — Entry of an increase in the share capital of a capital company in a 
commercial register — Duties paid by way of fees or dues — Meaning — Charges in 
direct proportion to the share capital raised — Excluded — Ceiling on charges •— 
Element of solidarity between large and small companies — Effect 
(Council Directive 69/335, Art. 12(1)(e)) 
1. Directive 69/355 concerning indirect 
taxes on the raising of capital must, in 
the light of its aims, in particular the 
abolition of indirect taxes having the 
same characteristics as capital duty, be 
interpreted as meaning that charges 
which are levied for entering an 
increase in a company's share capital 
in a commercial register and paid to the 
State in order to subsidise public 
expenditure constitute a tax within 
the meaning of the Directive. 
(see paras 24-26) 
2. Where they constitute a tax within the 
meaning of Directive 69/335 concern­
ing indirect taxes on the raising of 
capital, charges for recording an 
increase in the share capital of a 
company in a commercial register are 
in principle prohibited by Article 10(c) 
of that directive in so far as, its being 
compulsory to record any increase in a 
capital company's share capital in the 
commercial register, the recording of 
that increase constitutes an essential 
formality connected with the legal 
form of the company and it is necessary 
for the carrying on of the company's 
business. 
(see paras 30-31) 
3. Article 12(1)(e) of Directive 69/335 
concerning indirect taxes on the raising 
of capital is to interpreted as meaning 
that charges for recording an increase 
in the share capital of a capital com-
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SONAE 
pany in a commercial register, which 
increase without upper limit in direct 
proportion to the nominal capital sub­
scribed and are not calculated on the 
basis of the cost of the service rendered 
are not duties paid by way of fees or 
dues. 
The existence of a maximum which 
those charges cannot exceed is not 
sufficient to make them duties paid by 
way of fees or dues if that maximum is 
not established reasonably by reference 
to the cost of the service in respect of 
which the charges are levied. Further­
more, a Member State cannot, without 
making the charges in question cease to 
be duties paid by way of fees or dues, 
introduce into the scale of charges 
payable for a service rendered an 
element of solidarity between large 
and small companies, by establishing, 
for one and the same service, a higher 
charge for capital companies with 
significant share capital than for those 
with less share capital, where that 
difference in the charge bears no rela­
tion to the cost of the service. 
(see para. 43 and operative part) 
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