Judgment of the Court (Sixth Chamber) of 10 September 2002 In Joined Cases C-216/99 and C-222/99 (Reference for a preliminary ruling from the Tribunale di Milano): Riccardo Prisco Srl v Amministrazione delle Finanze dello Stato (C-216/99) and Ministero delle Finanze v CASER SpA (C-229/99) (Directive 69/335/EEC — Indirect taxes on the raising of capital — Articles 10 and 12(1)(e) — Register of companies — Registration of companies' instruments of incorporation and other company documents — Recovery of sums paid but not due — Procedural time-limits under national law — Interest)
Date: 2002-11-09
Institutions: Court of Justice
Subjects: EU law - national law, Italy, business tax, company law, direct tax, interpretation of the law, legal action

9.11.2002

EN

Official Journal of the European Communities

C 274/1

I

(Information)

COURT OF JUSTICE

COURT OF JUSTICE

JUDGMENT OF THE COURT

(Sixth Chamber)

of 10 September 2002

the interpretation of Community law on the recovery of sums
paid but not due, the Court (Sixth Chamber), composed
of: F. Macken, President of the Chamber,
J.-P. Puissochet
(Rapporteur), R. Schintgen, V. Skouris and J.N. Cunha Rodri-
gues, Judges; C. Stix-Hackl, Advocate General; L. Hewlett,
Principal Administrator, for the Registrar, has given a judgment
on 10 September 2002, in which it has ruled:

In Joined Cases C-216/99 and C-222/99 (Reference for a
preliminary ruling from the Tribunale di Milano): Riccar-
do Prisco Srl v Amministrazione delle Finanze dello Stato
(C-216/99) and Ministero delle Finanze v CASER SpA
(C-229/99) (1)

(Directive 69/335/EEC — Indirect taxes on the raising of
capital — Articles 10 and 12(1)(e) — Register of companies
— Registration of companies’ instruments of incorporation
and other company documents — Recovery of sums paid but
not due — Procedural time-limits under national law —
Interest)

(2002/C 274/01)

(Language of the case: Italian)

(Provisional translation; the definitive translation will be published
in the European Court Reports)

In Joined Cases C-216/99 and C-222/99: Reference to the
Court under Article 234 EC by the Tribunale di Milano (Italy)
(C-216/99) and the Corte d’appello di Roma (Italy) (C-222/99)
for preliminary rulings in the proceedings pending before
those courts between Riccardo Prisco Srl and Amministrazione
delle Finanze dello Stato (C-216/99), and between Ministero
delle Finanze and CASER SpA (C-222/99), on the interpret-
ation of Articles 10 and 12(1)(e) of Council Directive 69/335/
EEC of 17 July 1969 concerning indirect taxes on the raising
of capital (OJ, English Special Edition 1969(II), p. 412) and on

1. Article 10 of Council Directive 69/335/EEC of 17 July 1969
concerning indirect taxes on the raising of capital must be
interpreted as prohibiting, subject to the exceptions in Article 12
of that directive, retroactive charges for the registration of
company documents in the register of companies where they
do not constitute capital duty permitted by that directive.
Article 12(1)(e) of Directive 69/335/EEC must be interpreted
as meaning that such retroactive charges do not constitute
duties paid by way of fees or dues permitted by that provision
where the registrations in the register of companies for which
they are charged have already given rise to charges for which
the retroactive charges are intended to be a substitute but which
are not reimbursed to those who have paid them. Otherwise, for
such retroactive charges to constitute duties paid by way of fees
or dues permitted by Article 12(1)(e) of Directive 69/335/
EEC, their amounts, which may vary according to the legal
form of the company, must be calculated solely on the basis of
the cost of the formalities in question, although they may also
cover the costs of minor operations carried out free of charge,
and must take account of any other charges paid in parallel
which are also intended to pay for the same service rendered. In
calculating those amounts, a Member State is entitled to take
into account all the costs linked with the registration operations,
including the share of overheads attributable to them. A
Member State also has the option of introducing flat-rate
charges and setting their amounts for an indeterminate period,
as long as it ensures at regular intervals that those amounts
still do not exceed the average cost of the operations concerned.

C 274/2

EN

Official Journal of the European Communities

9.11.2002

2.

3.

Community law does not prohibit a Member State from
resisting actions for repayment of charges levied in breach of
Community law by relying on a time-limit under national law
of three years, by way of derogation from the ordinary rules
governing actions between private individuals for the recovery of
sums paid but not due, for which the period allowed is more
favourable, provided that that time-limit applies in the same
way to actions based on Community law for repayment of such
charges as to those based on national law.

Community law precludes the adoption by a Member State of
provisions making repayment of a tax held to be contrary to
Community law by a judgment of
the Court, or whose
incompatibility with Community law is apparent from such a
judgment, subject to conditions relating specifically to that tax
which are less favourable than those which would otherwise be
applied to repayment of the tax in question.

( 1) OJ C 226 of 7.8.1999.

the Guarantee Section of the European Agricultural Guidance
and Guarantee Fund (EAGGF) (OJ 1999 L 226, p. 26), in so far
as it imposes on the Federal Republic of Germany a flat-rate
correction of 5 % to the expenditure declared in respect of
financial support in the arable crops sector in Mecklenburg-
Vorpommern, equal to the sum of DEM 30 394 115,33,
instead of 2 %, equal to the sum of DEM 12 157 646,13 —
the Court (Fifth Chamber), composed of: P. Jann, President of
the Chamber, S. von Bahr (Rapporteur), D.A.O. Edward,
A. La Pergola, and C.W.A. Timmermans, Judges; C. Stix-
Hackl, Advocate General; M.-F. Contet, Administrator, for the
Registrar, has given a judgment on 19 September 2002, in
which it:

1. Dismisses the action;

2. Orders the Federal Republic of Germany to pay the costs.

(1) OJ C 366 of 18.12.1999.

JUDGMENT OF THE COURT

(Fifth Chamber)

of 19 September 2002

in Case C-377/99: Federal Republic of Germany v Com-
mission of the European Communities (1)

(EAGGF — Clearance of accounts — 1995 financial year
— Arable crops)

(2002/C 274/02)

(Language of the case: German)

(Provisional translation; the definitive translation will be published
in the European Court Reports)

In Case C-377/99, Federal Republic of Germany (Agents:
initially by W.-D. Plessing and C.-D. Quassowski and sub-
sequently W.-D. Plessing and B. Muttelsee-Schön) v Com-
mission of the European Communities (Agents: M. Niejahr and
G. Braun) — application for partial annulment of Commission
Decision 1999/596/EC of 28 July 1999, amending Decision
1999/187/EC on the clearance of the accounts presented by
the Member States in respect of the expenditure for 1995 of

JUDGMENT OF THE COURT

of 17 September 2002

in Case C-413/99 (Reference for a preliminary ruling
from the Immigration Appeal Tribunal): Baumbast, R v
Secretary of State for the Home Department (1)

(Freedom of movement for persons — Migrant worker —
Rights of residence of members of the migrant worker’s
family — Rights of the children to pursue their studies in
the host Member State — Articles 10 and 12 of Regulation
(EEC) No 1612/68 — Citizenship of the European Union —
Right of residence — Directive 90/364/EEC — Limitations
and conditions)

(2002/C 274/03)

(Language of the case: English)

In Case C-413/99: Reference to the Court under Article 234
EC by the Immigration Appeal Tribunal (United Kingdom) for