Case C-35/09: Reference for a preliminary ruling from the Corte Suprema di Cassazione (Italy) lodged on 28 January 2009 — Ministero dell'Economia e delle Finanze, Agenzia delle Entrate v Paolo Speranza
Date: 2009-01-28
Institutions: Court of Justice
Subjects: capital increase, company with share capital, interpretation of the law, principle of proportionality, ruling, tax

C 82/16

EN

Official Journal of the European Union

4.4.2009

Reference for a preliminary ruling from the Corte Suprema
di Cassazione (Italy)
lodged on 28 January 2009 —
Ministero dell'Economia e delle Finanze, Agenzia delle
Entrate v Paolo Speranza

Appeal brought on 28 January 2009 by Transportes
Evaristo Molina SA against the judgment delivered on
14 November 2008 in Case T-45/08 Transportes Evaristo
Molina SA v Commission of the European Communities

(Case C-35/09)

(2009/C 82/29)

Language of the case: Italian

(Case C-36/09 P)

(2009/C 82/30)

Language of the case: Spanish

Referring court

Corte Suprema di Cassazione

Parties to the main proceedings

Parties

Appellant: Transportes Evaristo Molina SA (represented by: A.
Hernández Pardo, S. Beltrán Ruiz and L. Ruiz Ezquerra, lawyers)

Other party to the proceedings: Commission of
Communities

the European

Appellants: Ministero dell'Economia e delle Finanze, Agenzia
delle Entrate

Form of order sought

Respondent: Paolo Speranza

Questions referred

1. Is Article 4(1)(c) of Directive 69/335/EEC (1), which provides
that an increase in the capital of a capital company by contri-
bution of assets of any kind is to be subject to capital duty,
to be interpreted as meaning that an actual contribution is to
be taxable, but not a mere decision to increase the share
capital which remains essentially unimplemented?

2. Is Article 4(1)(c) of Directive 69/335/EEC to be interpreted
as meaning that the duty must be levied exclusively on the
company to which the capital is contributed and not also on
the public official who drafts or certifies the transaction?

3. In any event, are the means of defence afforded to that
public official by the Italian legislation consistent with the
principle of proportionality, in light of the fact that, under
Article 38 of Decree No 131/1986 of the President of the
Republic, it is irrelevant whether the resolution to increase
share capital is null and void or may be annulled, and repay-
ment of the duty paid may be effected only after a civil judg-
ment declaring the transaction null and void or annulling it
has become final?

(1) OJ, English Special Edition, 1969 (II), p. 412.

— annul

the judgment of

the Court of First

Instance of
14 November 2008 in Case T-45/08 in its entirety and, if
the Court of Justice considers that it has sufficient evidence
to give a ruling on the substance of the appeal brought
against the Court of First Instance:

— Prior to the assessment of the substance of the case,
declare relevant and order
the
evidence requested by Transportes Evaristo Molina SA in
its application for annulment; and

the production of

— Uphold the submissions put

forward by Transportes
Evaristo Molina SA before the Court of First Instance:
annulment of
the Commission decision of 12 April
2006 (1) relating to a proceeding pursuant to Article 81
of
the EC Treaty (Case COMP/B-1/38.348 — Repsol
CPP) on the grounds that it infringes Article 9 of Regu-
lation No 1/2003 (2), and the principles of Community
law laid down in the action for annulment, Article 81 EC
and the exemption regulations for the categories which
are
in Article 81(3), Regulation (EEC)
No 1984/83 (3) and Regulation (EC) No 2790/99 (4).

set out

— order the Commission of the European Communities to pay

the costs.

Pleas in law and main arguments

(a) The ‘dies a quo’ (day from which) the starting point for the
limitation period laid down in Article 230 EC is calculated
is the day on which the contested measure (Commis-
sion decision of 12 April 2006 (5) relating to a proceeding
pursuant
(Case
COMP/B-1/38.348 — Repsol CPP) directly and individually
affected TRANSPORTES EVARISTO MOLINA SA.

to Article 81 of

EC Treaty

the