1969L0335 — EN — 01.05.2004 — 003.001 — 1
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►B COUNCILDIRECTIVE
of17July1969
concerningindirect taxesontheraisingofcapital
(69/335/EEC)
(OJ L 249, 3.10.1969, p. 25)
Amended by:
Official Journal
No page date
►M1Council Directive 73/79/EEC of 9 April 1973 L 103 13 18.4.1973
►M2Council Directive 74/553/EEC of 7 November 1974 L 303 9 13.11.1974
►M3Council Directive 85/303/EEC of 10 June 1985 L 156 23 15.6.1985
Amended by:
►A1Act of Accession of Denmark, Ireland and the United Kingdom of Great
Britain and Northern IrelandL 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
►A5Act concerning the conditions of accession of the Czech Republic, the
Republic of Estonia, the Republic of Cyprus, the Republic of Latvia,the Republic of Lithuania, the Republic of Hungary, the Republic ofMalta, the Republic of Poland, the Republic of Slovenia and the Slovak
Republic and the adjustments to the Treaties on which the European
Union isfoundedL 236 33 23.9.2003
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COUNCILDIRECTIVE
of17July1969
concerningindirect taxesontheraisingofcapital
(69/335/EEC)
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic
Community, and in particular Articles99 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);
Whereasthe objective of the Treaty isto create an economic union
whose characteristics are similar to those of a domestic market andwhereas one of the essential conditions for achieving this is the promo-tion of the free movement of capital;
Whereasthe indirect taxeson the rais ing of capital, in force in the
Member Statesat the pres ent time, namely the duty chargeable on
contribution of capital to companiesand firmsand the s tamp duty onsecurities, give rise to discrimination, double taxation and disparitieswhich interfere with the free movement of capital and which, conse-quently, 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 territoryis contrary to the concept of a common market whose characteristicsare those of a domestic market; whereas, in addition, it has becomeevident that 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 lawsof the Member Statesin thisfield;
Whereas, in these circumstances, it is advisable to abolish the stamp
duty on securities, regardless of the origin of such securities, and
regardless of whether they represent a company's own capital or itsloan capital;
Whereasit isinherent in the concept of a common market whos e char-
acteristics are those of a domestic market that duty on the raising of
capital within the common market by a company or firm should becharged only once and that the level of this duty should be the samein all Member Statess o asnot to interfere with the movement ofcapital;
Whereas, therefore, this duty should be harmonised, with regard both to
itss tructuresand to itsrates ;
Whereas the retention of other indirect taxes with the same characteris-
tics as the capital duty or the stamp duty on securities might frustrate
the purpose of the measures provided for in this Directive and thosetaxes should therefore be abolished;1969L0335 — EN — 01.05.2004 — 003.001 — 2
(1) OJ No 119, 3. 7. 1965, p. 2057/65.
(2) OJ No 134, 23. 7. 1965, p. 2227/65.
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HAS ADOPTED THIS DIRECTIVE:
Article 1
Member Statess hall charge on contributionsof capital to capital
companies a duty harmonised in accordance with the provisions of
Articles2 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 managementof a capital company is situated at the time when such transactionstake place.
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
the Member State where the registered office is situated.
3. When the registered office and the effective centre of manage-
ment 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 branchiss ituated.
Article 3
1. For the purposes of this Directive the expression ‘capital
company’ means:
(a) companiesunder Belgian, Danis h, German, ►
A3Spanish, ◄
French, ►A2Hellenic, ◄Irish, Italian, Luxembourg, Netherlands
►A3, Portuguese ◄and United Kingdom law known respec-
tively as:
— société anonyme/naamloze vennootschap, aktieselskab, Aktien-
gesellschaft, ►A3sociedad anónima, ◄société anonyme,
►A2Ανώνυµος Εταιρία, ◄companiesincorporated with
limited liability, società per azioni, société anonyme, naamlozevennootschap, ►
A3sociedade anónima, ◄companiesincor-
porated with limited liability;
— société en commandite par actions/commanditaire vennootschap
op aandelen, kommandit-aktieselskab, Kommanditgesellschaftauf 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 mit
beschränkter Haftung, ►A3sociedad de responsabilidad limit-
ada, ◄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’1969L0335 — EN — 01.05.2004 — 003.001 — 3
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▼A4
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— ‘bankaktiebolag’
— ‘försäkringsaktiebolag’;
Companiesunder Czech law known as :
— ‘akciová spole čnost’
— ‘komanditní spole čnost’
— ‘spole čnost s ru čením omezeným’;
Companiesunder Cypriot law known as :—‘εταιρείες περιορισµένης ευθύνης ’;
Companiesunder Latvian law known as :
— ‘kapit ālsabiedr ība’;
Companiesunder Hungarian law known as :— ‘részvénytársaság’
— ‘korlátolt felel ősségűtársaság’;
Companies under Maltese law known as:
— ‘Kumpaniji ta' Responsabilità Limitata’
— ‘So ċjetajiet en commandite li l-kapital tag ħhom maqsum f'azz-
jonijiet’;
Companies under Polish law known as:
— ‘spółka akcyjna’
— ‘spółka z ograniczon ąodpowiedzialno ścią’;
Companiesunder Slovenian law known as :
— ‘delniška družba’
— ‘komanditna delniška družba’
— ‘družba z omejeno odgovornostjo’;
Companiesunder Slovak law known as :— ‘akciová spolo čnosť’
— ‘spolo čnosťsručením obmedzeným’
— ‘komanditná spolo čnosť’.
(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 thirdparties without prior authorisation and are only responsible for thedebts of the company, firm, association or legal person to theextent of their shares.
2. For the purposes of the application of this Directive, any other
company, firm, association or legal person operating for profit shallbe deemed to be a capital company. However, a Member State shall
have the right not to consider it as such for the purpose of charging
capital duty.
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, associa-
tion 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 ofmembers, such as voting rights, a share in the profits or a share inthe surplus upon liquidation;1969L0335 — EN — 01.05.2004 — 003.001 — 4
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(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 is
considered in that Member State, for the purposes of charging
capital duty, asa capital company;
(f) the transfer from a third country to a Member State of the regis-
tered office of a company, firm, association or legal person,whose effective centre of management is in a third country and
which is considered in that Member State, for the purposes of char-
ging capital duty, asa capital company;
(g) the transfer from a Member State to another Member State of the
effective centre of management of a company, firm, association orlegal person which is considered in the latter Member State, for thepurposes of charging capital duty, as a capital company, but is not
so considered 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 purposesof charging capital duty, as a capital company, but is not so consid-
ered in the other Member State.
►
M32. The following transactions may, to the extent that they
were taxed at the rate of 1 % asat 1 July 1984, continue to be s ubject
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 thecompany'scapital, but which do res ult in variation in the rightsinthe company or which may increase the value of the company's
shares;
(c) a loan taken up by a capital company, if the creditor isentitled 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, ifit isguaranteed by a member, on condition that s uch loanshave the
same function as an increase in the company's capital.
However, the Hellenic Republic shall determine which of the transac-
tions listed above it will subject to capital duty.
3. Formation, within the meaning of paragraph 1 (a), shall not
include any alteration of the constituent instrument or regulations of a
capital company, 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, asa capital company;
(c) a change in the objectsof 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 becontributed by the members, after the deduction of liabilitiesassumed and of expenses borne by the company as a result of1969L0335 — EN — 01.05.2004 — 003.001 — 5
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each contribution. Member Statesmay pos tpone the charging of
capital duty until the contributionshave 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 ofa capital company, asreferred to in Article 4 (1) (b), (e), (f), (g)and (h); on the actual value of the assets of any kind belonging tothe company at the time of the conversion or transfer, after the
deduction of liabilitiesand expens esfor which the company is
responsible 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 deductionof the liabilities assumed and the expenses borne by the companyas a result 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 actualvalue of the shares in the company allotted or belonging to eachmember. This does not apply, to those cases in which contributionsare made only in cash. The amount on which duty is charged shall in
no circumstances be less than the nominal amount of the shares in the
company allotted or belonging to each member.
3. The amount on which the duty ischarged in the cas e 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
been subjected to capital duty;
— the amount of the loanstaken up by the capital company which are
converted into shares in the company and which have already been
subjected to capital duty.
Article 6
1. Each Member State may exclude from the basis of assessment, as
determined in accordance with Article 5, the amount of the capital
contributed by a member with unlimited liability for the obligationsofa capital company aswell asthe s hare of s uch a member in thecompany's assets.
2. Where a Member State exercises the power provided for in para-
graph 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 doesnot exercis e thatpower;
— the transfer of the registered office of a capital company whose
effective centre of management isin a third country to anotherMember State which doesnot exercis e that power;
— any transaction as a result of which the liability of a member is
limited to hiss hare in the company'scapital, in particular whenthe 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 liabilityfor the company'sobligations .1969L0335 — EN — 01.05.2004 — 003.001 — 6
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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 applic-
able, on that date, for the grant of the exemption or, asthe cas e maybe, 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 Statesmay either exempt from capital duty all trans ac-
tionsother than thos e referred to in paragraph 1 or charge duty on
them at 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'scapitalas a result of losses sustained, that part of the increase which corre-sponds to the 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 Statesmay 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, gasor electricity, in cas eswhere the State or regional orlocal authoritiesown at leas t half of the company'scapital;
— capital companieswhich, in accordance with their regulationsand
in fact, pursue exclusively and directly cultural, charitable, relief
or educational objectives.
Article 9
Certain typesof trans actionsor of capital companiesmay be the
subject of exemptions, reductions or increases in rates in order toachieve fairness in taxation, or for social considerations, or to enablea Member State to deal with special situations. The Member Statewhich proposes 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 Statess hall not charge, with regard to
companies, firms, associations or legal persons operating for profit, anytaxeswhats oever:
(a) in respect of the transactions referred to in Article 4;
(b) in respect of contributions, loans or the provision of services,
occurring aspart of the trans actionsreferred to in Article 4;
(c) in respect of registration or any other formality required before the
commencement of business to which a company, firm, association
or legal person operating for profit may be subject by reason of its
legal form.
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;1969L0335 — EN — 01.05.2004 — 003.001 — 7
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(b) loans, including government bonds, raised by the issue of deben-
tures or other negotiable securities, by whomsoever issued, or anyformalities relating thereto, or the creation, issue, admission to
quotation on a stock exchange, making available on the market or
dealing 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, of
businesses or immovable property situated within their territory;
(c) transfer duties on assets of any kind transferred to a company, firm,
association or legal person operating for profit, in so far as suchproperty is transferred for a consideration other than shares in the
company;
(d) duties on the creation, registration or discharge of mortgages or
other chargeson land or other property;
(e) dutiespaid by way of feesor dues ;
(f) value added tax.
2. The dutiesand taxesreferred to in paragraph 1 (b), (c), (d) and
(e) shall be the same, whether the effective centre of management orthe registered office of the company, firm, association or legal person
operating for profit iss ituated within the territory of the Member State
charging the dutiesor taxesor not; nor may thes e dutiesand taxesexceed those which are applicable to like transactions in the MemberState charging them.
Article 13
Member States shall bring into force by 1 January 1972 such provi-
sions by way of law, regulation or administrative action as may benecessary to comply with the provisions of this Directive and shall
forthwith inform the Commission thereof.
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 — 01.05.2004 — 003.001 — 8