CELEX: C2000/122/19
Language: en
Date: 2000-04-29 00:00:00
Title: Case C-45/00: Reference for a preliminary ruling by the Supremo Tribunal Administrativo (Second Chamber) by judgment of that court of 26 May 1999 in the case of Sonae Turismo, SGPS, SA, against Fazenda Pública

C 122/12                EN                      Official Journal of the European Communities                                           29.4.2000
Question 2                                                                 (1) May Article 10 of Council Directive 69/335/EEC (1) be
                                                                                relied on by a private individual in dealings with the State,
Does it have any bearing on the answer to Question 1 that it                    even if the latter has not transposed that directive into
can be assumed that the transferring company took out the                       national law?
loan in question with a view to reducing the net value of the
assets and liabilities to be transferred to the receiving company,
inasmuch as the loan proceeds are to remain in the transferring            (2) Must the operations referred to in Article 4(3) of Directive
company while the debt liability is transferred to the receiving                69/335/EEC be regarded as covered by the prohibition laid
company?                                                                        down in Article 10 of the same Community measure, in
                                                                                such a way as to preclude the collection, under the
                                                                                directive, not only of the tax on the raising of capital but
Question 3                                                                      also of any other levy, of whatever kind, in particular one
                                                                                that is a charge rather than a tax?
Does it have any bearing on the answer to Question 1 and/or
Question 2 that it can be assumed that the loan in question
was taken out with a view to making it possible for previous               (3) Must Articles 10 and 12(1)(e) of the same directive be
associates, as a step in a generation change within the                         interpreted as meaning that the fees payable for recordal in
undertaking, to finance the subscription of shares in the                       a (legally binding) commercial register public of resolutions
receiving company?                                                              increasing capital or amending statutes may not vary
                                                                                according to the amount of the increase and the amount
                                                                                of the capital, respectively?
Question 4
Must the provisions of the merger taxation directive, in                   (4) May such variations in the amount of the fee be regarded
particular Article 2(i) thereof, be understood as meaning that                  as depending, directly or indirectly, on the cost of the
it is contrary to those provisions for a condition to be imposed,               service provided?
before an arrangement can be treated as being covered by the
asset-transfer provisions of the directive, under which the
transferring company, the principal shareholders in person or
any other third party may not provide security for the benefit             (5) Does that cost include the salary of officials, agents or
of the receiving company, on the ground that it is indicated                    other public employees, expenses incurred in respect of
that the future cash requirements of the receiving company                      minor operations carried out free of charge, and a portion
are to be financed by working credit from a financial institution               of overheads (rent of premises, data-processing and com-
which wishes to obtain a lien on the shares of the receiving                    munications equipment, electricity, water and the like)
company?                                                                        attributable to registration operations?
(1) of 23 July 1990 on the common system of taxation applicable to
     mergers, divisions, transfers of assets and exchanges of shares       (6) Is it permitted, having regard to the abovementioned
     concerning companies of different Member States.                           articles of the said directive, to regard those variables
                                                                                deriving from increases of capital as a manifestation of
                                                                                standardised charges and, as such, authorised charges?
                                                                           (7) Is it permitted, having regard to the same provisions of the
                                                                                directive, for any fee to be charged in excess of the cost of
                                                                                the service? And if so, to what extent? If the excess were to
Reference for a preliminary ruling by the Supremo                               be manifest and unreasonable, could the amount of the
Tribunal Administrativo (Second Chamber) by judgment                            fees be reduced on an equitable basis?
of that court of 26 May 1999 in the case of Sonae Turismo,
               SGPS, SA, against Fazenda Pública
                           (Case C-45/00)
                                                                           (1) Council Directive 69/335/EEC of 17 July 1969 concerning
                                                                               indirect taxes on the raising of capital (OJ English Special Edition,
                          (2000/C 122/19)
                                                                               1969(II) p. 412).
Reference has been made to the Court of Justice of the
European Communities by judgment of the Supremo Tribunal
Administrativo (Supreme Administrative Court) of 26 May
1999, which was received at the Court Registry on 14 February
2000, for a preliminary ruling in the case of Sonae Turismo,
SGPS, SA, against Fazenda Pública on the following questions: