Judgment of the Court (Sixth Chamber) of 17 October 2002 in Case C-339/99 [Reference for a preliminary ruling from the Verwaltungsgerichtshof (Austria)]: Energie Steiermark Holding AG v Finanzlandesdirektion für Steiermark (Directive 69/335/EEC — Indirect taxes on the raising of capital — Capital duty — Increase in a company's capital by the issue of new shares — Payments made upon the entry of a new member as a shareholder in the company — Payments made by the parent company of the new member — Payments made to the subsidiaries of the company increasing its capital — Payments not yet made)
Date: 2002-12-07
Institutions: Court of Justice
Subjects: capital increase, company member, indirect tax, interpretation of the law, tax system

C 305/2

EN

Official Journal of the European Communities

7.12.2002

JUDGMENT OF THE COURT

(Sixth Chamber)

of 17 October 2002

in Case C-339/99 [Reference for a preliminary ruling from
the Verwaltungsgerichtshof (Austria)]: Energie Steier-
mark Holding AG v Finanzlandesdirektion für Steier-
mark (1)

(Directive 69/335/EEC — Indirect taxes on the raising of
capital — Capital duty — Increase in a company’s capital
by the issue of new shares — Payments made upon the entry
of a new member as a shareholder in the company —
Payments made by the parent company of the new member
— Payments made to the subsidiaries of the company
increasing its capital — Payments not yet made)

(2002/C 305/02)

(Language of the case: German)

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

2. Article 4(1)(c) of Directive 69/335, as amended by the
abovementioned Act of Accession,
is to be interpreted as
meaning that the expression ‘contribution of assets of any kind’
used therein covers additional payments which a new member
makes not to the capital company which is increasing its capital,
but to subsidiaries of that company, when it is clear from the
circumstances of the case that, from an economic point of view,
the real recipient of those payments is that company.

3.

4.

Payments made subject to the fulfilment of a condition precedent
amount to contributions within the meaning of Article 4(1)(c)
of Directive 69/335, as amended by the said Act of Accession,
only after that condition has been fulfilled.

Capital duty does not amount to a ‘liability’ or an ‘expense’
within the meaning of Article 5(1)(a) of Directive 69/335, as
amended by the Act of Accession mentioned in paragraph 1 of
the operative part of this judgment.

(1) OJ C 352 of 4.12.1999.

JUDGMENT OF THE COURT

(Sixth Chamber)

of 17 October 2002

In Case C-339/99: Reference to the Court under Article 234
EC by the Verwaltungsgerichtshof (Austria) for a preliminary
ruling in the proceedings pending before that court between
Energie Steiermark Holding AG and Finanzlandesdirektion für
Steiermark, on the interpretation of Articles 4(1)(c) and 5(1)(a)
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), as amended by the Act concerning
the conditions of accession of the Republic of Austria, the
Republic of Finland and the Kingdom of Sweden and the
adjustments to the Treaties on which the European Union is
founded (OJ 1994 C 241, p. 21, and OJ 1995 L 1, p. 1), the
Court (Sixth Chamber), composed of: J.-P. Puissochet, President
of
the Chamber, R. Schintgen (Rapporteur), V. Skouris,
F. Macken and J.N. Cunha Rodrigues, Judges; A. Tizzano,
Advocate General; D. Louterman-Hubeau, Head of Division,
for the Registrar, has given a judgment on 17 October 2002,
in which it has ruled:

1. Article 4(1)(c) of Council Directive 69/335/EEC of 17 July
1969 concerning indirect taxes on the raising of capital, as
amended by the Act concerning the conditions of accession of
the Republic of Finland and the
the Republic of Austria,
Kingdom of Sweden and the adjustments to the Treaties on
which the European Union is founded, is to be interpreted as
meaning that the expression ‘contribution of assets of any kind’
used therein covers the payments which a parent company
makes to a capital company, which is increasing its capital by
the issue of new shares, to enable the acquisition of those shares
by a subsidiary of that parent company.

in Case C-71/00 (Reference for a preliminary ruling from
the Verwaltungsgerichtshof): Develop Baudurchführungs-
und Stadtentwicklungsgesellschaft mbH v Finanzlandes-
direktion für Wien, Niederösterreich und Burgenland (1)

(Directive 69/335/EEC — Indirect taxes on the raising of
capital — Capital duty — Contribution of assets of any kind
— Meaning — Payments made by the parent company of a
company which has acquired dividend certificates issued by
a capital company)

(2002/C 305/03)

(Language of the case: German)

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

In Case C-71/00: Reference to the Court under Article 234 EC
by the Verwaltungsgerichtshof (Austria) for a preliminary
ruling in the proceedings pending before that court between
Develop Baudurchführungs- und Stadtentwicklungsgesell-
schaft mbH and Finanzlandesdirektion für Wien, Niederöster-
reich und Burgenland,on the interpretation of Article 4(1)(d)
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), as amended by the Act concerning
the conditions of accession of the Republic of Austria, the