1969L0335 — EN — 01.01.1995 — 002.001 — 1
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►B COUNCIL DIRECTIVE
of 17July 1969
concerning indirect taxes on the raising of capital
(69/335/EEC)
(OJ L 249, 3.10.1969, p. 25)
Amended by:
Official Journal
No page date
►M1Council Directive of 9 April 1973 (73/79/EEC) L 103 13 18.4.1973
►M2Council Directive of 7 November 1974 (74/553/EEC) L 303 9 13.11.1974
►M3Council Directive of 10 June 1985 (85/303/EEC) L 156 23 15.6.1985
Amended by:
►A1Act of Accession of Denmark, Ireland and the United Kingdom of Great
Britain and Northern Ireland L 73 14 27.3.1972
(adapted by Council Decision of 1 January 1973) L 2 1 1.1.1973
►A2Act of Accession of Greece L 291 17 19.11.1979
►A3Act of Accession of Spain and Portugal L 302 23 15.11.1985
►A4Act of Accession of Austria, Sweden and Finland C 241 21 29.8.1994
(adapted by Council Decision 95/1/EC, Euratom, ECSC) L 1 1 1.1.1995
▼B
COUNCIL DIRECTIVE
of 17July 1969
concerning indirect taxes on the raising of capital
(69/335/EEC)
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic
Community, and in particular Articles 99 and 100 thereof;
Having regard to the proposal from the Commission;
Having regard to the Opinion of the European Parliament(1);
Having regard to the Opinion of the Economic and Social Committee(2);
Whereas the objective of the Treaty is to create an economic union
whose characteristics are similar to those of a domestic market and
whereas one of the essential conditions for achieving this is thepromotion of the free movement of capital;
Whereas the indirect taxes on the raising of capital, in force in the
Member States at the present time, namely the duty chargeable on
contribution of capital to companies and firms and the stamp duty onsecurities, give rise to discrimination, double taxation and disparitieswhich interfere with the free movement of capital and which,consequently, must be eliminated by harmonisation
Whereas the harmonisation of such taxes on the raising of capital must
be arranged in such a way as to minimise the budgetary repercussionsfor Member States;
Whereas the charging of stamp duty by a Member State on securities
from other Member States introduced into or issued within its territory iscontrary to the concept of a common market whose characteristics arethose of a domesticmarket; whereas, in addition, it has bec ome evidentthat the retention of stamp duty on the issue of securities in respect of
internal loans and on the introduction or issue on the market of a
Member State of foreign securities is both undesirable from theeconomic point of view and inconsistent with current developments inthe tax laws of the Member States in this field;
Whereas, in these circumstances, it is advisable to abolish the stamp
duty on securities, regardless of the origin of such securities, andregardless of whether they represent a company's own capital or its loancapital;
Whereas it is inherent in the concept of a common market whose
characteristics are those of a domestic market that duty on the raising ofcapital within the common market by a company or firm should becharged only once and that the level of this duty should be the same inall Member States so as not to interfere with the movement of capital;
Whereas, therefore, this duty should be harmonised, with regard both to
its structures and to its rates;
Whereas the retention of other indirect taxes with the same
characteristics as the capital duty or the stamp duty on securities might
frustrate the purpose of the measures provided for in this Directive andthose taxes should therefore be abolished;1969L0335 — EN — 01.01.1995 — 002.001 — 2
(1) OJ No 119, 3. 7. 1965, p. 2057.
(2) OJ No 134, 23. 7. 1965, p. 2227.
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HAS ADOPTED THIS DIRECTIVE:
Article 1
Member States shall charge on contributions of capital to capital
companies a duty harmonised in accordance with the provisions ofArticles 2 to 9 and hereinafter called ‘capital duty’.
Article 2
1. Transactions subject to capital duty shall only be taxable in the
Member State in whose territory the effective centre of management of a
capital company is situated at the time when such transactions takeplace.
2. When the effective centre of management of a capital company is
situated in a third country and its registered office is situated in aMember State, transactions subject to capital duty shall be taxable in theMember State where the registered office is situated.
3. When the registered office and the effective centre of management
of a capital company are situated in a third country, the supplying of
fixed or working capital to a branch situated in a Member State may be
taxed in the Member State in whose territory the branch is situated.
Article 3
1. For the purposes of this Directive the expression capital ‘company
means’:
(a) companies under Belgian, Danish, German, ►
A3Spanish, ◄
French,►A2Hellenic, ◄Irish, Italian, Luxembourg, Netherlands
►A3, Portuguese ◄and United Kingdom law known respectively
as:
— société anonyme/naamloze vennootschap, aktieselskab, Aktien-
gesellschaft, ►A3sociedad anónima, ◄société anonyme,
►A2Ανώνυµος Εταιρία, ◄companies incorporated with
limited liability, società per azioni, société anonyme, naamloze
vennootschap, ►A3sociedade anónima, ◄companies incor-
porated with limited liability;
— société en commandite par actions/commanditaire vennootschap
op aandelen, kommandit-aktieselskab, Kommanditgesellschaft
auf Aktien, ►A3sociedad comanditaria por acciones, ◄
société en commandite par actions, ►A2Ετερόρρυθµος
κατά µετοχάς Εταιρία, ◄società in accomandita per azioni,
société en commandite par actions, commanditaire vennootschap
op aandelen ►A3, sociedade em comandita por acções ◄;
— société de personnes à responsabilité limitée/ personenven-
nootschap met beperkte aansprakelijkheid, Gesellschaft mitbeschränkter Haf- tung, ►
A3sociedad de responsabilidad
limitada, ◄société à responsabilité limitée, ►A2Εταιρία
Περιωρισµένης Ευθύνης, ◄società a responsabilità limitata,
société à responsabilité limitée ►A3, sociedade por quotas ◄;
Companies under Austrian law known as:
— ‘Aktiengesellschaft’
— ‘Gesellschaft mit beschränkter Haftung’;
Companies under Finnish law known as:— ‘osakeyhtiö — aktiebolag’, ‘osuuskunta — andelslag’,
‘säästöpankki — sparbank’ and ‘vakuutusyhtiö — försäkrings-
bolag’;
Companies under Swedish law known as:— ‘aktiebolag’
— ‘bankaktiebolag’
— ‘försäkringsaktiebolag’.1969L0335 — EN — 01.01.1995 — 002.001 — 3
▼A1
▼A4
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(b) any company, firm, association or legal person the shares in whose
capital or assets can be dealt in on a stock exchange;
(c) any company, firm, association or legal person operating for profit,
whose members have the right to dispose of their shares to third
parties without prior authorisation and are only responsible for the
debts of the company, firm, association or legal person to the extentof their shares.
2. For the purposes of the application of this Directive, any other
company, firm, association or legal person operating for profit shall bedeemed to be a capital company. However, a Member State shall havethe right not to consider it as such for the purpose of charging capitalduty.
Article 4
1. The following transactions shall be subject to capital duty:
(a) the formation of a capital company;
(b) the conversion into a capital company of a company, firm,
association or legal person which is not a capital company;
(c) an increase in the capital of a capital company by contribution of
assets of any kind;
(d) an increase in the assets of a capital company by contribution of
assets of any kind, in consideration, not of shares in the capital orassets of the company, but of rights of the same kind as those of
members, such as voting rights, a share in the profits or a share in
the surplus upon liquidation;
(e) the transfer from a third country to a Member State of the effective
centre of management of a company, firm, association or legalperson, whose registered office is in a third country and which isconsidered in that Member State, for the purposes of charging
capital duty, as a capital company;
(f) the transfer from a third country to a Member State of the registered
office of a company, firm, association or legal person, whose
effective centre of management is in a third country and which isconsidered in that Member State, for the purposes of chargingcapital duty, as a capital company;
(g) the transfer from a Member State to another Member State of the
effective centre of management of a company, firm, association or
legal person which is considered in the latter Member State, for the
purposes of charging capital duty, as a capital company, but is not soconsidered in the other Member State;
(h) the transfer from a Member State to another Member State of the
registered office of a company, firm, association or legal person,whose effective centre of management is in a third country andwhich is considered in the latter Member State, for the purposes of
charging capital duty, as a capital company, but is not so considered
in the other Member State.
►
M32. The following transactions may, to the extent that they
were taxed at the rate of 1 % as at 1 July 1984, continue to be subject to
capital duty: ◄
(a) an increase in the capital of a capital company by capitalisation of
profits or of permanent or temporary reserves;
(b) an increase in the assets of a capital company through the provision
of services by a member which do not entail an increase in the
company s capital, but which do result in variation in the rights inthe company or which may increase the value of the company'sshares;
(c) a loan taken up by a capital company, if the creditor is entitled to a
share in the profits of the company;
(d) a loan taken up by a capital company with a member or a member's
spouse or child, or a loan taken up with a third party, if it is1969L0335 — EN — 01.01.1995 — 002.001 — 4
▼B
guaranteed by a member, on condition that such loans have the same
function as an increase in the company's capital.
However, the HellenicRepublicshall determine whic h of the
transactions listed above it will subject to capital duty.
3. Formation, within the meaning of paragraph 1 (a), shall not include
any alteration of the constituentinstrument or regulations of a capitalcompany, and in particular:
(a) the conversion of a capital company into a different type of capital
company;
(b) the transfer from a Member State to another Member State of the
effective centre of management or of the registered office of acompany, firm, association or legal person which is considered inboth Member States, for the purposes of charging capital duty, as a
capital company;
(c) a change in the objects of a capital company;
(d) the extension of the period of existence of a capital company.
Article 5
1. The duty shall be charged:
(a) in the case of formation of a capital company or of an increase in its
capital or assets, as referred to in Article 4 (1) (a), (c) and (d): on the
actual value of assets of any kind contributed or to be contributed by
the members, after the deduction of liabilities assumed and ofexpenses borne bythe company as a result of each contribution.Member States may postpone the charging of capital duty until thecontributions have been effected;
(b) in the case of conversion into a capital company or of the transfer of
the effective centre of management or of the registered office of acapital company, as referred to in Article 4 (1) (b), (e), (f), (g) and(h); on the actual value of the assets of any kind belonging to the
company at the time of the conversion or transfer, after the
deduction of liabilities and expenses for which the company isresponsible at that time;
(c) in the case of an increase in the capital by capitalisation of profits
reserves, or provisions, as referred to in Article 4 (2) (a): on thenominal amount of such increase;
(d) in the case of an increase in the assets, as referred to in Article 4 (2)
(b): on the actual value of the services provided, after deduction ofthe liabilities assumed and the expenses borne by the company as aresult of the provision of such services;
(e) in the case of loans referred to in Article 4 (2) (c) and (d): on the
nominal amount of the loan taken up.
2. In the cases referred to in paragraph 1 (a) and (b), Member States
may base the amount on which to charge capital duty on the actual value
of the shares in the company allotted or belonging to each member. Thisdoes not apply, to those cases in which contributions are made only incash. The amount on which duty is charged shall in no circumstances beless than the nominal amount of the shares in the company allotted orbelonging to each member.
3. The amount on which the duty is charged in the case of an increase
in capital shall not include:
— the amount of the assets belonging to the capital company which are
allocated to the increase in capital and which have already beensubjected to capital duty;
— the amount of the loans taken up by the capital company which are
converted into shares in the company and which have already beensubjected to capital duty.1969L0335 — EN — 01.01.1995 — 002.001 — 5
▼M3
▼B
▼M2
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Article 6
1. Each Member State may exclude from the basis of assessment, as
determined in accordance with Article 5, the amount of the capitalcontributed by a member with unlimited liability for the obligations of acapital company as well as the share of such a member in the company'sassets.
2. Where a Member State exercises the power provided for in
paragraph 1, the following shall be subject to capital duty:
— the transfer of the effective centre of management of a capital
company to another Member State which does not exercise thatpower;
— the transfer of the registered office of a capital company whose
effective centre of management is in a third country to anotherMember State which does not exercise that power;
— any transaction as a result of which the liability of a member is
limited to his share in the company's capital, in particular when the
limitation of liability results from the conversion of a capitalcompany into a different type of capital company.
Capital duty shall be charged in all such cases on the value of the share
in the company's assets belonging to members with unlimited liability
for the company's obligations.
Article 7
1. Member States shall exempt from capital duty transactions, other
than those referred to in Article 9, which were, as at 1 July 1984,
exempted or taxed at a rate of 0,50 % or less.
The exemption shall be subject to the conditions which were applicable,
on that date, for the grant of the exemption or, as the case may be, for
imposition at a rate of 0,50 % or less.
The Hellenic Republic shall determine which transactions it shall
exempt from capital duty.
2. Member States may either exempt from capital duty all transac-
tions other than those referred to in paragraph 1 or charge duty on themat a single rate not exceeding 1 %.
3. In the case of an increase in a company's capital in accordance
with Article 4 (1) (c), following a reduction in the company's capital as aresult of losses sustained, that part of the increase which corresponds tothe reduction in capital may be exempted, provided this increase occurs
within four years of the reduction in capital.
Article 8
Subject to Article 7 (1), Member States may exempt from capital duty
the transactions referred to in Article 4 (1) and (2) concerning:
— capital companies which supply public services, such as public
transport undertakings, port authorities or undertakings supplyingwater, gas or electricity, in cases where the State or regional or localauthorities own at least half of the company's capital;
— capital companies which, in accordance with their regulations and in
fact, pursue exclusively and directly cultural, charitable, relief oreducational objectives.
Article 9
Certain types of transactions or of capital companies may be the subject
of exemptions, reductions or increases in rates in order to achievefairness in taxation, or for social considerations, or to enable a MemberState to deal with special situations. The Member State which proposes1969L0335 — EN — 01.01.1995 — 002.001 — 6
▼M3
▼B
▼M3
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to take such a measure shall refer the matter to the Commission in good
time, having regard to the application of Article 102 of the Treaty.
Article 10
Apart from capital duty, Member States shall not charge, with regard to
companies, firms, associations or legal persons operating for profit, any
taxes whatsoever:
(a) in respect of the transactions referred to in Article 4;
(b) in respect of contributions, loans or the provision of services,
occurring as part of the transactions referred to in Article 4;
(c) in respect of registration or any other formality required before the
commencement of business towhich a company, firm, association orlegal person operating for profit may be subject by reason of its legalform.
Article 11
Member States shall not subject to any form of taxation whatsoever:
(a) the creation, issue, admission to quotation on a stock exchange,
making available on the market or dealing in stocks, shares or othersecurities of the same type, or of the certificates representing suchsecurities, by whomsoever issued;
(b) loans, including government bonds, raised by the issue of debentures
or other negotiable securities, by whomsoever issued, or any
formalities relating thereto, or the creation, issue, admission toquotation on a stock exchange, making available on the market ordealing in such debentures or other negotiable securities.
Article 12
1. Notwithstanding Articles 10 and 11, Member States may charge:
(a) duties on the transfer of securities, whether charged at a flat rate or
not;
(b) transfer duties, including land registration taxes, on the transfer, to a
company, firm, association or legal person operating for profit, ofbusinesses or immovable property situated within their territory;
(c) transfer duties on assets of any kind transferred to a company, firm,
association or legal personoperating for profit, in so far as such
property is transferred for a consideration other than shares in thecompany;
(d) duties on the creation, registration or discharge of mortgages or
other charges on land or other property;
(e) duties paid by way of fees or dues;
(f) value added tax.
2. The duties and taxes referred to in paragraph 1 (b), (c), (d) and (e)
shall be the same, whether the effective centre of management or theregistered office of the company, firm, association or legal personoperating for profit is situated within the territory of the Member Statecharging the duties or taxes or not; nor may these duties and taxes
exceed those which are applicable to like transactions in the Member
State charging them.
Article 13
Member States shall bring into force by 1 January 1972 such provisions
by way of law, regulation or administrative action as may be necessaryto comply with the provisions of this Directive and shall forthwithinform the Commission thereof.1969L0335 — EN — 01.01.1995 — 002.001 — 7
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Article 14
Member States shall ensure that the texts of the main provisions of
internal law which they subsequently adopt in the field covered by this
Directive are forwarded to the Commission.
Article 15
This Directive is addressed to the Member States.1969L0335 — EN — 01.01.1995 — 002.001 — 8