Case C-366/05: Reference for a preliminary ruling from the Supremo Tribunal Administrativo by order of that court of  6 July 2005  in Optimus — Telecomunicações, S.A. v Fazenda Pública
Date: 2005-12-24
Institutions: Court of Justice
Subjects: Portugal, capital increase, early-stage capital, interpretation of the law, stamp duty, tax law

C 330/8

EN

Official Journal of the European Union

24.12.2005

3. If the answer to the second question is that Member States
can select which ‘special investment funds’ benefit from the
exemption, how do the principles of fiscal neutrality, equal
treatment and the prevention of distortion of competition
affect the exercise of that discretion?

4. Does Article 13B(d)(6) have direct effect?

effect that they prohibit the levying of stamp duty, by virtue
of national legislation such as Decree Law No 322-B/2001
of 14 December 2001, which inserted paragraph 26 —
Capital Duty — in the General Table of Stamp duty, on a
limited company governed by Portuguese law when its
capital is increased, by payments in cash, when, as at 1 July
1984, that transaction was subject to that duty but was
exempted from it?

(1) Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmo-
nization of the laws of the Member States relating to turnover taxes
– Common system of value added tax: uniform basis of assessment,
OJ L 145, 13.06.1977, p. 1

(1) OJ L 249, p. 25.
(2) O L 156, p. 23.

Reference for a preliminary ruling from the Supremo
Tribunal Administrativo by order of that court of 6 July
2005 in Optimus — Telecomunicações, S.A. v Fazenda
Pública

Appeal brought on 10 October 2005 by Bart Nijs against
the order made on 26 May 2005 by the Court of First
Instance of the European Communities (Second Chamber)
in Case T-377/04 between Bart Nijs and the Court of Audi-
tors of the European Communities

(Case C-366/05)

(2005/C 330/15)

(Language of the case: Portuguese)

(Case C-373/05 P)

(2005/C 330/16)

(Language of the case: French)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Supremo Tribunal Adminis-
trativo of 6 July 2005, received at the Court Registry on 29
September 2005, for a preliminary ruling in the proceedings
between Optimus — Telecomunicações, S.A. and Fazenda
Pública on the following questions:

1. Must Article 7(1) of Council Directive 69/335/EEC (1) of 17
July 1969 concerning indirect
taxes on the raising of
capital, as amended by Council Directive 85/303/EEC (2) of
10 June 1985, be interpreted restrictively so as to impose as
a precondition for the obligation which it
imposes on
Member States to exempt certain transactions involving the
raising of capital the requirement that the transactions in
question must be those which, under the wording of the
directive prior to 1985, could be exempted from the duty
or taxed at a reduced rate — that is to say only those
referred to in Article 4(2) and Article 8 — and which, in
addition, were in that situation as at 1 July 1984?

An appeal against the order made on 26 May 2005 by the
Court of First Instance of the European Communities (Second
Chamber) in Case T-377/04 between Bart Nijs and the Court of
Auditors of the European Communities was brought before the
Court of Justice of the European Communities on 10 October
2005 by Bart Nijs, represented by Fränk Rollinger, lawyer.

The applicant claims that the Court should:

— declare this appeal admissible in form;

— declare this appeal well-founded on the substance;

— find that the subject-matter of Bart Nijs's complaint of 27
February 2004 is identical
to the subject-matter of his
application lodged on 16 September 2004 at the Registry
of the Court of First Instance;

— declare the application of Bart Nijs admissible;

2. Must Article 7(1) of Council Directive 69/335/EEC of 17
July 1969 concerning indirect
taxes on the raising of
capital, as amended by Council Directive 85/303/EEC of 10
June 1985, and Article 10 thereof be interpreted to the

— consequently, annul the order of the Second Chamber of
the Court of First Instance of 26 May 2005 and refer this
case back to the Court of First Instance with a different
composition for a hearing.