CELEX: C2002/305/03
Language: en
Date: 2002-12-07 00:00:00
Title: Judgment of the Court (Sixth Chamber) of 17 October 2002 in Case C-71/00 (Reference for a preliminary ruling from the Verwaltungsgerichtshof): Develop Baudurchführungs- und Stadtentwicklungsgesellschaft mbH 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 — Payments made by the parent company of a company which has acquired dividend certificates issued by a capital company)

C 305/2                  EN                      Official Journal of the European Communities                                          7.12.2002
                  JUDGMENT OF THE COURT                                     2.    Article 4(1)(c) of Directive 69/335, as amended by the
                                                                                  abovementioned Act of Accession, is to be interpreted as
                                                                                  meaning that the expression ‘contribution of assets of any kind’
                          (Sixth Chamber)                                         used therein covers additional payments which a new member
                                                                                  makes not to the capital company which is increasing its capital,
                                                                                  but to subsidiaries of that company, when it is clear from the
                        of 17 October 2002
                                                                                  circumstances of the case that, from an economic point of view,
                                                                                  the real recipient of those payments is that company.
in Case C-339/99 [Reference for a preliminary ruling from
the Verwaltungsgerichtshof (Austria)]: Energie Steier-                      3.    Payments made subject to the fulfilment of a condition precedent
mark Holding AG v Finanzlandesdirektion für Steier-                               amount to contributions within the meaning of Article 4(1)(c)
                                mark (1)                                          of Directive 69/335, as amended by the said Act of Accession,
                                                                                  only after that condition has been fulfilled.
(Directive 69/335/EEC — Indirect taxes on the raising of                    4.    Capital duty does not amount to a ‘liability’ or an ‘expense’
capital — Capital duty — Increase in a company’s capital                          within the meaning of Article 5(1)(a) of Directive 69/335, as
by the issue of new shares — Payments made upon the entry                         amended by the Act of Accession mentioned in paragraph 1 of
of a new member as a shareholder in the company —                                 the operative part of this judgment.
Payments made by the parent company of the new member
— Payments made to the subsidiaries of the company
       increasing its capital — Payments not yet made)                      (1 ) OJ C 352 of 4.12.1999.
                           (2002/C 305/02)
                    (Language of the case: German)
                                                                                              JUDGMENT OF THE COURT
(Provisional translation; the definitive translation will be published
                    in the European Court Reports)                                                     (Sixth Chamber)
                                                                                                     of 17 October 2002
In Case C-339/99: Reference to the Court under Article 234                  in Case C-71/00 (Reference for a preliminary ruling from
EC by the Verwaltungsgerichtshof (Austria) for a preliminary                the Verwaltungsgerichtshof): Develop Baudurchführungs-
ruling in the proceedings pending before that court between                 und Stadtentwicklungsgesellschaft mbH v Finanzlandes-
Energie Steiermark Holding AG and Finanzlandesdirektion für                  direktion für Wien, Niederösterreich und Burgenland ( 1)
Steiermark, on the interpretation of Articles 4(1)(c) and 5(1)(a)
of Council Directive 69/335/EEC of 17 July 1969 concerning                  (Directive 69/335/EEC — Indirect taxes on the raising of
indirect taxes on the raising of capital (OJ, English Special               capital — Capital duty — Contribution of assets of any kind
Edition 1969 (II), p. 412), as amended by the Act concerning                — Meaning — Payments made by the parent company of a
the conditions of accession of the Republic of Austria, the                 company which has acquired dividend certificates issued by
Republic of Finland and the Kingdom of Sweden and the                                                 a capital company)
adjustments to the Treaties on which the European Union is
founded (OJ 1994 C 241, p. 21, and OJ 1995 L 1, p. 1), the                                             (2002/C 305/03)
Court (Sixth Chamber), composed of: J.-P. Puissochet, President
of the Chamber, R. Schintgen (Rapporteur), V. Skouris,
F. Macken and J.N. Cunha Rodrigues, Judges; A. Tizzano,                                         (Language of the case: German)
Advocate General; D. Louterman-Hubeau, Head of Division,
for the Registrar, has given a judgment on 17 October 2002,                 (Provisional translation; the definitive translation will be published
in which it has ruled:                                                                          in the European Court Reports)
1.    Article 4(1)(c) of Council Directive 69/335/EEC of 17 July
      1969 concerning indirect taxes on the raising of capital, as          In Case C-71/00: Reference to the Court under Article 234 EC
      amended by the Act concerning the conditions of accession of          by the Verwaltungsgerichtshof (Austria) for a preliminary
      the Republic of Austria, the Republic of Finland and the              ruling in the proceedings pending before that court between
      Kingdom of Sweden and the adjustments to the Treaties on              Develop Baudurchführungs- und Stadtentwicklungsgesell-
      which the European Union is founded, is to be interpreted as          schaft mbH and Finanzlandesdirektion für Wien, Niederöster-
      meaning that the expression ‘contribution of assets of any kind’      reich und Burgenland,on the interpretation of Article 4(1)(d)
      used therein covers the payments which a parent company               of Council Directive 69/335/EEC of 17 July 1969 concerning
      makes to a capital company, which is increasing its capital by        indirect taxes on the raising of capital (OJ, English Special
      the issue of new shares, to enable the acquisition of those shares    Edition 1969 (II), p. 412), as amended by the Act concerning
      by a subsidiary of that parent company.                               the conditions of accession of the Republic of Austria, the
 ---pagebreak--- 7.12.2002                EN                      Official Journal of the European Communities                                                C 305/3
Republic of Finland and the Kingdom of Sweden and the                       the proceedings pending before that court between Roquette
adjustments to the Treaties on which the European Union is                  Frères SA and Directeur général de la concurrence, de la
founded (OJ 1994 C 241, p. 21, and OJ 1995 L 1, p. 1), the                  consommation et de la répression des fraudes; Third party:
Court (Sixth Chamber), composed of: J.-P. Puissochet, President             Commission of the European Communities, on the interpret-
of the Chamber, R. Schintgen (Rapporteur), C. Gulmann,                      ation of Article 14 of Regulation No 17 of the Council of
F. Macken and J.N. Cunha Rodrigues, Judges; A. Tizzano,                     6 February 1962: First Regulation implementing Articles 85
Advocate General; R. Grass, Registrar, has given a judgment                 and 86 of the Treaty (OJ, English Special Edition 1959-1962,
on 17 October 2002, in which it has ruled:                                  p. 87) and of the judgment in Joined Cases 46/87 and 227/88
                                                                            Hoechst v Commission [1989] ECR 2859, the Court, composed
                                                                            of: G.C. Rodríguez Iglesias, President, J.-P. Puissochet,
Article 4(1)(d) of Council Directive 69/335/EEC of 17 July 1969
concerning indirect taxes on the raising of capital, as amended by the      M. Wathelet and R. Schintgen (Presidents of Chambers),
                                                                            C. Gulmann, D.A.O. Edward, A. La Pergola (Rapporteur),
Act concerning the conditions of accession of the Republic of Austria,
the Republic of Finland and the Kingdom of Sweden and the                   P. Jann, V. Skouris, F. Macken, N. Colneric, S. von Bahr and
                                                                            J.N. Cunha Rodrigues, Judges; J. Mischo, Advocate General;
adjustments to the Treaties on which the European Union is founded,
                                                                            L. Hewlett, Administrator, for the Registrar, has given a
is to be interpreted as meaning that capital duty is chargeable on
payments made by a parent company to a capital company, which is            judgment on 22 October 2002, in which it has ruled:
increasing its assets by the issue of dividend certificates, in order to
enable the acquisition of such certificates by a subsidiary of that
parent company.
( 1) OJ C 149 of 27.5.2000.
                                                                            1.    In accordance with the general principle of Community law
                                                                                  affording protection against arbitrary or disproportionate inter-
                                                                                  vention by public authorities in the sphere of the private
                                                                                  activities of any person, whether natural or legal, a national
                                                                                  court having jurisdiction under domestic law to authorise entry
                                                                                  upon and seizures at the premises of undertakings suspected of
                                                                                  having infringed the competition rules is required to verify that
                  JUDGMENT OF THE COURT                                           the coercive measures sought in pursuance of a request by the
                                                                                  Commission for assistance under Article 14(6) of Regulation
                        of 22 October 2002                                        No 17 of the Council of 6 February 1962: First Regulation
                                                                                  implementing Articles 85 and 86 of the Treaty are not arbitrary
                                                                                  or disproportionate to the subject-matter of the investigation
in Case C-94/00 (Reference for a preliminary ruling from                          ordered. Without prejudice to any rules of domestic law
the Cour de cassation): Roquette Frères SA v Directeur                            governing the implementation of coercive measures, Community
général de la concurrence, de la consommation et de la                            law precludes review by the national court of the justification of
répression des fraudes, Third party: Commission of the                            those measures beyond what is required by the foregoing general
                    European Communities ( 1)                                     principle.
(Competition law — Article 14(3) and (6) of Regulation
No 17 — Commission decision ordering an investigation —
Provision of assistance by national authorities — Interpret-
ation of the judgment of 21 September 1989 in Hoechst v                     2.    Community law requires the Commission to ensure that the
Commission — General principles — Protection against                              national court in question has at its disposal all the information
arbitrary or disproportionate intervention by public auth-                        which it needs in order to carry out the review which it is
orities in the private activities of a legal person — Scope of                    required to undertake. In that regard, the information supplied
the review which a competent national court is required to                        by the Commission must in principle include:
carry out for the purposes of authorising coercive measures
against undertakings — Commission’s duty to provide
        information — Duty to cooperate in good faith)
                           (2002/C 305/04)                                        —     a description of the essential features of the suspected
                                                                                        infringement, that is to say, at the very least, an indication
                     (Language of the case: French)                                     of the market thought to be affected and of the nature of
                                                                                        the suspected restrictions of competition;
(Provisional translation; the definitive translation will be published
                    in the European Court Reports)
                                                                                  —     explanations concerning the manner in which the under-
In Case C-94/00: Reference to the Court under Article 234 EC                            taking at which the coercive measures are aimed is thought
by the Cour de Cassation (France) for a preliminary ruling in                           to be involved in the infringement in question;