CELEX: C2002/305/05
Language: en
Date: 2002-12-07 00:00:00
Title: Judgment of the Court (Sixth Chamber) of 17 October 2002 in Case C-138/00 (Reference for a preliminary ruling from the Verwaltungsgerichtshof): Solida Raiffeisen Immobilien Leasing GmbH, Tech Gate Vienna Wissenschafts- und Technologiepark GmbH 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 — Acquisition by a non-member of dividend certificates issued by a capital company)

C 305/4                   EN                         Official Journal of the European Communities                                           7.12.2002
      —      detailed explanations showing that the Commission                                    JUDGMENT OF THE COURT
             possesses solid factual information and evidence providing
             grounds for suspecting such infringement on the part of                                       (Sixth Chamber)
             the undertaking concerned;
                                                                                                         of 17 October 2002
      —      as precise as possible an indication of the evidence sought,
             of the matters to which the investigation must relate and          in Case C-138/00 (Reference for a preliminary ruling from
             of the powers conferred on the Community investigators             the Verwaltungsgerichtshof): Solida Raiffeisen Immobili-
             and                                                                en Leasing GmbH, Tech Gate Vienna Wissenschafts-
                                                                                und Technologiepark GmbH v Finanzlandesdirektion für
                                                                                          Wien, Niederösterreich und Burgenland ( 1)
      —      in the event that the assistance of the national authorities
             is requested by the Commission as a precautionary                  (Directive 69/335/EEC — Indirect taxes on the raising of
             measure, in order to overcome any opposition on the part           capital — Capital duty — Contribution of assets of any kind
             of the undertaking concerned, explanations enabling the            — Meaning — Acquisition by a non-member of dividend
             national court to satisfy itself that, if authorisation for the                 certificates issued by a capital company)
             coercive measures were not granted on precautionary
             grounds, it would be impossible, or very difficult, to                                         (2002/C 305/05)
             establish the facts amounting to the infringement.
                                                                                                     (Language of the case: German)
3.    On the other hand, the national court may not demand that it
                                                                                (Provisional translation; the definitive translation will be published
      be provided with the evidence in the Commission’s file on which
                                                                                                     in the European Court Reports)
      the latter’s suspicions are based.
4.    Where the national court considers that the information                   In Case C-138/00: Reference to the Court under Article 234
      communicated by the Commission does not fulfil the require-               EC by the Verwaltungsgerichtshof (Austria) for a preliminary
      ments referred to in point 2 of this operative part, it cannot,           ruling in the proceedings pending before that court between
      without violating Article 14(6) of Regulation No 17 and                   Solida Raiffeisen Immobilien Leasing GmbH, Tech Gate Vienna
      Article 5 of the EC Treaty (now Article 10 EC), simply dismiss            Wissenschafts- und Technologiepark GmbH and Finanzlandes-
      the application brought before it. In such circumstances, it is           direktion für Wien, Niederösterreich und Burgenland, on the
      required as rapidly as possible to inform the Commission, or              interpretation of Article 5(1)(a) of Council Directive 69/335/
      the national authority which has brought the latter’s request             EEC of 17 July 1969 concerning indirect taxes on the raising
      before it, of the difficulties encountered, where necessary by            of capital (OJ, English Special Edition 1969 (II), p. 412), as
      asking for any clarification which it may need in order to carry          amended by the Act concerning the conditions of accession of
      out the review which it is to undertake. Not until any such               the Republic of Austria, the Republic of Finland and the
      clarification is forthcoming, or the Commission fails to take any         Kingdom of Sweden and the adjustments to the Treaties on
      practical steps in response to its request, may the national court        which the European Union is founded (OJ 1994 C 241, p. 21,
      in question refuse to grant the assistance sought on the ground           and OJ 1995 L 1, p. 1), the Court (Sixth Chamber), composed
      that, in the light of the information available to it, it is unable       of: J.-P. Puissochet, President of the Chamber, R. Schintgen
      to hold that the coercive measures envisaged are not arbitrary            (Rapporteur), V. Skouris, F. Macken and J.N. Cunha Rodrigues,
      or disproportionate to the subject-matter of those measures.              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:
5.    The information to be provided by the Commission to the
      national court may be contained either in the investigation               Article 5(1)(a) of Council Directive 69/335/EEC of 17 July 1969
      decision itself or in the request made to the national authorities        concerning indirect taxes on the raising of capital, as amended by the
      under Article 14(6) of Regulation No 17, or indeed in an                  Act concerning the conditions of accession of the Republic of Austria,
      answer — even one given orally — to a question put by that                the Republic of Finland and the Kingdom of Sweden and the
      court.                                                                    adjustments to the Treaties on which the European Union is founded,
                                                                                is to be interpreted as meaning that the expression ‘assets of any kind
                                                                                contributed or to be contributed by the members’ used therein covers
                                                                                payments made to a capital company, which is increasing its assets
                                                                                by the issue of dividend certificates, by a non-member of that company
( 1) OJ C 149 of 27.5.2000.                                                     which wishes to acquire such certificates.
                                                                                (1 ) OJ C 176 of 24.6.2000.