WRITTEN QUESTION E-1636/03 by Bartho Pronk (PPE-DE) to the Commission. Sixth VAT Directive.
Date: 2003-05-15
Institutions: European Parliament, Provisional data
Subjects: VAT, acquisition of property, basis of tax assessment, case-law (EU), registration tax, tax system

C 78 E/376

Official Journal of the European Union

EN

27.3.2004

Will the Commission ascertain:

(cid:1) whether this transfer has been carried out and, if so, on what terms, given that until recently the mere

intention was denied and/or ruled out?

(cid:1) whether the transaction advisor was selected on the basis of a public tender procedure or, at least, a

public selection procedure?

(cid:1) whether, if it is true that Mr Ferruccio Piantini, son of Mr Giorgio Piantini, chairman of the ‘Casinò
Municipale di Venezia SpA’ company, is vice-chairman of Meliorbanca, this is not tantamount to an
unacceptable ‘conflict of interests’, especially if the contract is awarded by the Casinò di Venezia
company to the Meliorbanca bank by direct private negotiation?

(cid:1) whether such sales transactions are being conducted in compliance with Community and national

(Maltese and Italian, in particular) law?

Answer given by Mr Bolkestein on behalf of the Commission

(12 June 2003)

At this stage, the Commission is unable to determine whether the transaction in question has indeed taken
place and whether it has been carried out in compliance with relevant Community rules.

The Commission invites the Honourable Member to provide further information on this issue, bearing in
mind however that the Commission is only competent to monitor the application of Community law and
will consequently not be able to answer any question related to the correct application, by the Italian
bodies involved, of the relevant Italian and Maltese legislation.

With regard to the specific issue of whether the ‘Casinó municipale de Venise SpA’ company complied
with the Community rules on public procurement when choosing the ‘advisor’ for the sales transaction in
question, the Commission does not yet have the information required in order to answer the question
asked by the Honourable Member.

The Commission will therefore contact the Italian authorities to obtain the information required in order
to ascertain, first of all, whether the ‘Casinó municipale de Venise SpA’ company can be defined as a
contracting authority under the terms of the Community public procurement directives and if it is thus
obliged to apply the aforementioned rules. Should these rules apply, the Commission will
investigate
whether they have been observed in the choice of ‘advisor’ for the share transfer transaction mentioned by
the Honourable Member.

(2004/C 78 E/0399)

WRITTEN QUESTION E-1636/03

by Bartho Pronk (PPE-DE) to the Commission

(15 May 2003)

Subject: Sixth VAT Directive

The Sixth VAT Directive (Directive 77/388/EEC (1) on the harmonisation of the laws of the Member States
relating to turnover taxes (cid:1) Common system of value added tax: uniform basis of assessment) covers
In Ireland stamp duty is frequently levied on newly built
immovable property among other things.
properties in addition to VAT. It is doubtful whether the uniform basis of assessment within the meaning
of the Sixth VAT directive is applied when stamp duty is levied.

Does the Commission consider that the simultaneous imposition of stamp duty and VAT is in breach

1.
of the VAT Directive? Is there any case law relating to this matter?

2.

Are such taxes compatible with other European legislation on freedom of movement?

(1) OJ L 145, 13.6.1977, p. 1.

27.3.2004

EN

Official Journal of the European Union

C 78 E/377

Answer given by M. Bolkestein on behalf of the Commission

(19 June 2003)

The ‘stamp duty’ to which the Honorable Member refers is a tax on documents. For the most part, these
are legal documents used in the transfer of property or are documents which create rights for the parties
concerned. Where documents are not properly stamped, they cannot be used in court proceedings. If a
document records the transfer of ownership of a newly-built property, then that property cannot be
registered unless the correct stamp duty is paid.

Whether or not stamp duty is payable on a document recording the transfer of a new property depends on
the value of the property and whether or not the purchaser is a first time buyer, where the property is
residential.

1.
According to article 33 of the sixth VAT Council Directive 77/388/EEC of 17 May 1977 on the
harmonisation of the laws of the Member States relating to turnover taxes (cid:1) Common system of value
added tax: uniform basis of assessment (1), Member States are allowed to maintain or introduce, among
other taxes, stamp duties, provided that they are not characterised as turnover taxes.

In practice, a charge can be characterised as a turnover tax if it exhibits the same essential features as VAT
which, according to the case law of the Court of Justice, can be outlined as follows:

(cid:1) VAT is generally applied to transactions relating to goods or services;

(cid:1) it is proportional to the price of those goods or services;

(cid:1) it is charged at each stage of the production and distribution process;

(cid:1) it is imposed on the added value of goods and services.

In the judgement of 16 December 1992 (case C-208/91 Beaulande (2)), the Court of Justice analysed the
specific case of stamp duty imposed by France in addition to VAT on the acquisition of building land. The
judgement held that a charge of this kind did not have the essential characteristics of VAT as described
above. In this regard, the Court established that the levy of both this tax and of VAT was not contrary to
the Sixth VAT Directive.

In particular, the Court stated that ‘stamp duty is not a general tax, as it is not intended to apply to all
economic transactions. Secondly, no production and distribution process is involved, as the stamp duty is
charged only when the real estate passes into the ownership of the final consumer. Furthermore, it is not
deductible from duty of the same kind paid on subsequent conveyances. Finally, the levying of such duty
does not take account of the added value but is based on the full value of the property’ (points 16 to 18).

2.
In the field of taxation, a general principle establishes that the taxation of immovable property falls
within the competence of the State where the property stands. Therefore, it is not clear how the stamp
duty imposed in Ireland would be contrary to the freedom of movement.

(1) OJ L 145, 13.6.1977. Directive as last amended by Council Directive 2002/92/EC. OJ L 331, 7.12.2002.
(2) Case C-208/91 Raymond Beaulande v. Directeur des services fiscaux de Nantes [1992] ECR I-6709.