Judgment of the Court (Sixth Chamber) of 17 October 2002 in Case C-71/00 (Reference for a preliminary ruling from the Verwaltungsgerichtshof): Develop Baudurchführungs- und Stadtentwicklungsgesellschaft mbH v Finanzlandesdirektion für Wien, Niederösterreich und Burgenland (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)
Date: 2002-12-07
Institutions: Court of Justice
Subjects: company with share capital, indirect tax, interpretation of the law, speculative capital

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

7.12.2002

EN

Official Journal of the European Communities

C 305/3

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), C. Gulmann,
F. Macken and J.N. Cunha Rodrigues, Judges; A. Tizzano,
Advocate General; R. Grass, Registrar, has given a judgment
on 17 October 2002, in which it has ruled:

Article 4(1)(d) 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 Austria,
the Republic of Finland and the Kingdom of Sweden and the
adjustments to the Treaties on which the European Union is founded,
is to be interpreted as meaning that capital duty is chargeable on
payments made by a parent company to a capital company, which is
increasing its assets by the issue of dividend certificates, in order to
enable the acquisition of such certificates by a subsidiary of that
parent company.

( 1) OJ C 149 of 27.5.2000.

JUDGMENT OF THE COURT

of 22 October 2002

in Case C-94/00 (Reference for a preliminary ruling from
the Cour de cassation): Roquette Frères SA v Directeur
général de la concurrence, de la consommation et de la
répression des fraudes, Third party: Commission of the
European Communities (1)

(Competition law — Article 14(3) and (6) of Regulation
No 17 — Commission decision ordering an investigation —
Provision of assistance by national authorities — Interpret-
ation of the judgment of 21 September 1989 in Hoechst v
Commission — General principles — Protection against
arbitrary or disproportionate intervention by public auth-
orities in the private activities of a legal person — Scope of
the review which a competent national court is required to
carry out for the purposes of authorising coercive measures
against undertakings — Commission’s duty to provide
information — Duty to cooperate in good faith)

the proceedings pending before that court between Roquette
Frères SA and Directeur général de la concurrence, de la
consommation et de la répression des fraudes; Third party:
Commission of the European Communities, on the interpret-
ation of Article 14 of Regulation No 17 of the Council of
6 February 1962: First Regulation implementing Articles 85
and 86 of the Treaty (OJ, English Special Edition 1959-1962,
p. 87) and of the judgment in Joined Cases 46/87 and 227/88
Hoechst v Commission [1989] ECR 2859, the Court, composed
of: G.C. Rodríguez Iglesias, President,
J.-P. Puissochet,
M. Wathelet and R. Schintgen (Presidents of Chambers),
C. Gulmann, D.A.O. Edward, A. La Pergola (Rapporteur),
P. Jann, V. Skouris, F. Macken, N. Colneric, S. von Bahr and
J.N. Cunha Rodrigues, Judges; J. Mischo, Advocate General;
L. Hewlett, Administrator,
for the Registrar, has given a
judgment on 22 October 2002, in which it has ruled:

1.

In accordance with the general principle of Community law
affording protection against arbitrary or disproportionate inter-
vention by public authorities in the sphere of the private
activities of any person, whether natural or legal, a national
court having jurisdiction under domestic law to authorise entry
upon and seizures at the premises of undertakings suspected of
having infringed the competition rules is required to verify that
the coercive measures sought in pursuance of a request by the
Commission for assistance under Article 14(6) of Regulation
No 17 of the Council of 6 February 1962: First Regulation
implementing Articles 85 and 86 of the Treaty are not arbitrary
or disproportionate to the subject-matter of the investigation
law
ordered. Without prejudice
governing the implementation of coercive measures, Community
law precludes review by the national court of the justification of
those measures beyond what is required by the foregoing general
principle.

to any rules of domestic

2.

Community law requires the Commission to ensure that the
national court in question has at its disposal all the information
which it needs in order to carry out the review which it is
required to undertake. In that regard, the information supplied
by the Commission must in principle include:

(2002/C 305/04)

(Language of the case: French)

— a description of the essential features of the suspected
infringement, that is to say, at the very least, an indication
of the market thought to be affected and of the nature of
the suspected restrictions of competition;

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

In Case C-94/00: Reference to the Court under Article 234 EC
by the Cour de Cassation (France) for a preliminary ruling in

— explanations concerning the manner in which the under-
taking at which the coercive measures are aimed is thought
to be involved in the infringement in question;