Ministero dell'Economia e delle Finanze and Agenzia delle Entrate v Paolo Speranza.
Date: 2010-07-01
28. In that regard, it is sufficient to point out that, as is apparent from settled case-law, the requirements flowing from the protection of the general principles recognised in the legal order of the European Union are also binding on Member States when they implement Union rules, and that consequently they are bound, as far as possible, to apply the rules in accordance with those requirements (see Case C‑540/03 Parliament v Council  [2006] ECR I‑5769, paragraph 105 and the case-law cited).
32. The Court has already held that the event giving rise to capital duty is the contribution of assets increasing the capital of a company itself and not some other transaction or formality (Case C‑46/04 Aro Turbi Trafilerie  [2006] ECR I‑3009, paragraph 27).
33. However, the Court has also held that Articles 4(1)(c) and 5(1)(a) of Directive 69/355 do not specify the point at which the chargeable event for capital duty occurs (Case C‑339/99 ESTAG  [2002] ECR I‑8837, paragraph 49).
34. Since Article 5(1)(a) of Directive 69/335 permits capital duty to be charged on assets contributed or to be contributed by the members and for the charging of duty to be deferred until the contributions have been effected, the Member States can demand payment of the duty either after the assets have actually been contributed or at the same time as that contribution is effected or even before that event, provided that the contribution is definite (see, to that effect, ESTAG , paragraph 50).
35. It follows that Article 4(1)(c) of Directive 69/335 does not preclude a Member State from identifying the registration of an instrument recording an increase in the capital of a company as the point at which the chargeable event for capital duty occurs, provided that there remains a connection between the levying of the duty and the actual contribution of assets to the company receiving them (see, to that effect, ESTAG , paragraphs 49 and 50).
36. If, at the time when such an instrument is executed, the actual contribution of assets has not yet been effected and it remains uncertain whether it will be effected, the Member State concerned cannot demand payment of capital duty until the contribution has become definite (see, to that effect, ESTAG , paragraphs 50 and 51).
41. While it is correct, as submitted by the Italian Government, that Directive 69/335 does not in any way concern the manner in which Member States organise the rules of their tax courts or the procedure applicable to actions brought before them, the fact remains that, according to established case-law, a procedural rule laid down by the domestic legal system of a Member State must not render in practice impossible or excessively difficult the exercise of rights conferred by European Union law (principle of effectiveness) (see, inter alia, Case C‑542/08 Barth  [2010] ECR I‑0000, paragraph 17 and the case-law cited).
42. The requirement of effectiveness embodies the general obligation on the Member States to ensure judicial protection of an individual’s rights under European Union law. It applies both as regards the designation of the courts and tribunals having jurisdiction to hear and determine actions based on European Union law and as regards the definition of detailed procedural rules (see, to that effect, Joined Cases C‑317/08 and C‑320/08 Alassini and Others  [2010[ ECR I‑0000, paragraph 49 and the case-law cited).
43. The Court has stated that every case in which the question arises as to whether a national procedural provision makes the application of European Union law impossible or excessively difficult must be analysed by reference to the role of that provision in the procedure, its progress and its special features, viewed as a whole, before the various national bodies (Case C‑40/08 Asturcom Telecomunicaciones  [2009] ECR I‑0000, paragraph 39 and the case-law cited).
50. It is apparent from the case-law that, according to the scheme and structure of Directive 69/335, capital duty is to be levied on the capital company receiving the contribution in question. The recipient is normally the company to which the resources or services in question are physically given. It is only exceptionally that that is not the case and that it is necessary to seek to identify the ‘real recipient’ of the resources or services in question (Case C‑494/03 Senior Engineering Investments [2006] ECR I‑525, paragraph 25).