CELEX: C2002/274/01
Language: en
Date: 2002-11-09 00:00:00
Title: Judgment of the Court (Sixth Chamber) of 10 September 2002 In Joined Cases C-216/99 and C-222/99 (Reference for a preliminary ruling from the Tribunale di Milano): Riccardo Prisco Srl v Amministrazione delle Finanze dello Stato (C-216/99) and Ministero delle Finanze v CASER SpA (C-229/99) (Directive 69/335/EEC — Indirect taxes on the raising of capital — Articles 10 and 12(1)(e) — Register of companies — Registration of companies' instruments of incorporation and other company documents — Recovery of sums paid but not due — Procedural time-limits under national law — Interest)

9.11.2002               EN                       Official Journal of the European Communities                                                C 274/1
                                                                         I
                                                                   (Information)
                                                     COURT OF JUSTICE
                                                               COURT OF JUSTICE
                 JUDGMENT OF THE COURT                                       the interpretation of Community law on the recovery of sums
                                                                             paid but not due, the Court (Sixth Chamber), composed
                                                                             of: F. Macken, President of the Chamber, J.-P. Puissochet
                         (Sixth Chamber)                                     (Rapporteur), R. Schintgen, V. Skouris and J.N. Cunha Rodri-
                                                                             gues, Judges; C. Stix-Hackl, Advocate General; L. Hewlett,
                      of 10 September 2002                                   Principal Administrator, for the Registrar, has given a judgment
                                                                             on 10 September 2002, in which it has ruled:
In Joined Cases C-216/99 and C-222/99 (Reference for a
preliminary ruling from the Tribunale di Milano): Riccar-
do Prisco Srl v Amministrazione delle Finanze dello Stato
(C-216/99) and Ministero delle Finanze v CASER SpA
                            (C-229/99) ( 1)
(Directive 69/335/EEC — Indirect taxes on the raising of                     1.    Article 10 of Council Directive 69/335/EEC of 17 July 1969
capital — Articles 10 and 12(1)(e) — Register of companies                         concerning indirect taxes on the raising of capital must be
— Registration of companies’ instruments of incorporation                          interpreted as prohibiting, subject to the exceptions in Article 12
and other company documents — Recovery of sums paid but                            of that directive, retroactive charges for the registration of
not due — Procedural time-limits under national law —                              company documents in the register of companies where they
                              Interest)                                            do not constitute capital duty permitted by that directive.
                                                                                   Article 12(1)(e) of Directive 69/335/EEC must be interpreted
                          (2002/C 274/01)                                          as meaning that such retroactive charges do not constitute
                                                                                   duties paid by way of fees or dues permitted by that provision
                                                                                   where the registrations in the register of companies for which
                    (Language of the case: Italian)                                they are charged have already given rise to charges for which
                                                                                   the retroactive charges are intended to be a substitute but which
                                                                                   are not reimbursed to those who have paid them. Otherwise, for
(Provisional translation; the definitive translation will be published             such retroactive charges to constitute duties paid by way of fees
                   in the European Court Reports)                                  or dues permitted by Article 12(1)(e) of Directive 69/335/
                                                                                   EEC, their amounts, which may vary according to the legal
                                                                                   form of the company, must be calculated solely on the basis of
                                                                                   the cost of the formalities in question, although they may also
In Joined Cases C-216/99 and C-222/99: Reference to the                            cover the costs of minor operations carried out free of charge,
Court under Article 234 EC by the Tribunale di Milano (Italy)                      and must take account of any other charges paid in parallel
(C-216/99) and the Corte d’appello di Roma (Italy) (C-222/99)                      which are also intended to pay for the same service rendered. In
for preliminary rulings in the proceedings pending before                          calculating those amounts, a Member State is entitled to take
those courts between Riccardo Prisco Srl and Amministrazione                       into account all the costs linked with the registration operations,
delle Finanze dello Stato (C-216/99), and between Ministero                        including the share of overheads attributable to them. A
delle Finanze and CASER SpA (C-222/99), on the interpret-                          Member State also has the option of introducing flat-rate
ation of Articles 10 and 12(1)(e) of Council Directive 69/335/                     charges and setting their amounts for an indeterminate period,
EEC of 17 July 1969 concerning indirect taxes on the raising                       as long as it ensures at regular intervals that those amounts
of capital (OJ, English Special Edition 1969(II), p. 412) and on                   still do not exceed the average cost of the operations concerned.
 ---pagebreak--- C 274/2                  EN                      Official Journal of the European Communities                                       9.11.2002
2.    Community law does not prohibit a Member State from                   the Guarantee Section of the European Agricultural Guidance
      resisting actions for repayment of charges levied in breach of        and Guarantee Fund (EAGGF) (OJ 1999 L 226, p. 26), in so far
      Community law by relying on a time-limit under national law           as it imposes on the Federal Republic of Germany a flat-rate
      of three years, by way of derogation from the ordinary rules          correction of 5 % to the expenditure declared in respect of
      governing actions between private individuals for the recovery of     financial support in the arable crops sector in Mecklenburg-
      sums paid but not due, for which the period allowed is more           Vorpommern, equal to the sum of DEM 30 394 115,33,
      favourable, provided that that time-limit applies in the same         instead of 2 %, equal to the sum of DEM 12 157 646,13 —
      way to actions based on Community law for repayment of such           the Court (Fifth Chamber), composed of: P. Jann, President of
      charges as to those based on national law.                            the Chamber, S. von Bahr (Rapporteur), D.A.O. Edward,
                                                                            A. La Pergola, and C.W.A. Timmermans, Judges; C. Stix-
3.    Community law precludes the adoption by a Member State of             Hackl, Advocate General; M.-F. Contet, Administrator, for the
      provisions making repayment of a tax held to be contrary to           Registrar, has given a judgment on 19 September 2002, in
      Community law by a judgment of the Court, or whose                    which it:
      incompatibility with Community law is apparent from such a
      judgment, subject to conditions relating specifically to that tax
      which are less favourable than those which would otherwise be         1.    Dismisses the action;
      applied to repayment of the tax in question.
                                                                            2.    Orders the Federal Republic of Germany to pay the costs.
( 1) OJ C 226 of 7.8.1999.
                                                                            (1 ) OJ C 366 of 18.12.1999.
                  JUDGMENT OF THE COURT
                           (Fifth Chamber)
                                                                                             JUDGMENT OF THE COURT
                      of 19 September 2002
                                                                                                 of 17 September 2002
in Case C-377/99: Federal Republic of Germany v Com-
           mission of the European Communities (1)
                                                                            in Case C-413/99 (Reference for a preliminary ruling
                                                                            from the Immigration Appeal Tribunal): Baumbast, R v
(EAGGF — Clearance of accounts — 1995 financial year                               Secretary of State for the Home Department (1)
                           — Arable crops)
                                                                            (Freedom of movement for persons — Migrant worker —
                           (2002/C 274/02)                                  Rights of residence of members of the migrant worker’s
                                                                            family — Rights of the children to pursue their studies in
                                                                            the host Member State — Articles 10 and 12 of Regulation
                    (Language of the case: German)
                                                                            (EEC) No 1612/68 — Citizenship of the European Union —
                                                                            Right of residence — Directive 90/364/EEC — Limitations
(Provisional translation; the definitive translation will be published                                and conditions)
                    in the European Court Reports)
                                                                                                     (2002/C 274/03)
In Case C-377/99, Federal Republic of Germany (Agents:
                                                                                               (Language of the case: English)
initially by W.-D. Plessing and C.-D. Quassowski and sub-
sequently W.-D. Plessing and B. Muttelsee-Schön) v Com-
mission of the European Communities (Agents: M. Niejahr and
G. Braun) — application for partial annulment of Commission
Decision 1999/596/EC of 28 July 1999, amending Decision
1999/187/EC on the clearance of the accounts presented by                   In Case C-413/99: Reference to the Court under Article 234
the Member States in respect of the expenditure for 1995 of                 EC by the Immigration Appeal Tribunal (United Kingdom) for