Ponente Carni SpA and Cispadana Costruzioni SpA v Amministrazione delle Finanze dello Stato.
Date: 1993-04-20
16 In those circumstances the President of the Tribunale di Milano stayed the proceedings and referred the following three questions to the Court for a preliminary ruling:
"1. Are 'duties paid by way of fees or dues' , referred to in Article 12(1)(e) of Directive 69/335/EEC of 17 July 1969 to be construed as meaning solely the charges made for services (optional or mandatory) performed by the public administration specifically for the person requesting them, or do the said 'duties paid by way of fees or dues' include charges made for services performed in the public interest?
2. Must the pecuniary charge allowed by Article 12(1)(e) of Directive 69/335/EEC of 17 July 1969 ° in respect of 'duties paid by way of fees or dues' ° be proportional to the actual cost of the service provided (as held on several occasions by the Court of Justice, albeit in cases concerning another matter, namely customs, in relation to costs for a service which was not optional but mandatory: see for example the judgment of 12 July 1977 in Case 89/76 Commission v Netherlands [1977] ECR 1355, paragraph 16; and subsequent judgments, most recently that of 21 March 1991 in Case C-209/89 Commission v Italian Republic) or may the actual cost of the service be completely disregarded?
3. Must Article 10 and Article 12(1)(e) of Directive 69/335/EEC be interpreted as precluding the introduction and/or maintenance of national legislation ° of the type introduced by the Italian legislature in the form of Article 3(19) of Decree Law No 853 of 19 December 1984 (converted into Law No 17 of 17 February 1985) and amended by Article 36(8) of Decree Law No 69 of 2 March 1989, converted into Law No 154 of 27 April 1989 ° which required the annual payment of a charge which is not quantified or quantifiable on the basis of the cost of the service provided and, moreover, is of an amount considerably higher than that charged to other capital companies and other undertakings for the same service (for example, for a Società a Responsibilità Limitata (private limited company) the tax is LIT 3.5 million; for other types of companies it is LIT 500 thousand)?"
19 As the recitals in the preamble indicate, the Directive aims at encouraging the free movement of capital which is regarded as essential for the creation of an economic union whose characteristics are similar to those of a domestic market. As far as concerns taxes on the raising of capital the pursuit of such an objective presupposes the abolition of indirect taxes in force in the Member States until then and imposing in place of them a duty charged only once in the common market and at the same level in all the Member States.
20 For these purposes the Directive provides for charging on the raising of capital a capital duty, which, as stated in the seventh recital, should be harmonized with regard both to its structures and to its rates (Case 161/78 Conradsen [1979] ECR 2221, paragraph 11). That capital duty is governed by the provisions of Articles 2 to 9 of the Directive.
24 Article 12(1) of the Directive lays down an exhaustive list of taxes and duties other than capital duty which, in derogation from Articles 10 and 11, may affect capital companies in connection with the transactions referred to in those latter provisions (see to that effect Case 36/86 Ministeriet for Skatter og Afgifter v Dansk Sparinvest [1988] ECR 409, paragraph 9). Article 12(1)(e) of the directive concerns in particular "duties paid by way of fees or dues". Article 12(2) prohibits certain forms of discrimination concerning the duties and taxes referred to in paragraph 1.
Article 10 of the Directive
29 Indirect taxes which have the same characteristics as capital duty fall within the scope of Article 10 of the Directive. They thus cover, whatever their form, charges which are levied for the formation of a capital company (under (a)) or for registration or any other formality required before the commencement of business to which a company may be subject by reason of its legal form (under (c)).
30 It follows that the various charges and duties levied for the registration of a capital company fall within the scope of the aforementioned provisions and are, in principle, prohibited, subject to the derogating provisions of Article 12. Contrary to what the Italian, Netherlands and United Kingdom Governments contend, there is no reason based on the wording of the provision or on its objectives which makes it possible to refrain automatically from applying Article 10 in cases where the product of the charge contributes to the financing of the department responsible for keeping the register in which companies are registered. On the contrary, by enabling Member States to impose a charge, other than capital duty, on capital companies in respect of one of the essential formalities for their formation, the amount of which moreover would not be restricted by the provisions of Community law, the interpretation proposed by the abovementioned governments would run counter to the objectives of the Directive.
31 The fact that the charge is due not only on registration of the company but also in each subsequent year, cannot of itself free the charge from the prohibition laid down by Article 10. As the Commission and the undertakings which are parties to the main proceedings emphasize, any other interpretation would deprive the provisions of Article 10 of any practical effect since it would enable Member States to burden capital companies with an annual fiscal charge the chargeable event for which would be merely the maintenance of the company in the register.
36 The principles identified by the Court in defining payment for services rendered seek to give full effect to the provisions of the Treaty prohibiting charges having an effect equivalent to customs duties which, by their nature, affect only imported products; such principles consequently seek to allow the levying of various charges and payments when a frontier is crossed only if the amounts so levied constitute consideration for a specific service actually and individually rendered to the trader (see to that effect Case 340/87 Commission v Italy [1989] ECR 1483, paragraph 15).
41 The distinction between taxes prohibited by Article 10 of the Directive and duties paid by way of fees or dues implies that the latter cover only payments collected on registration or annually, the amount of which is calculated on the basis of the cost of the service rendered.
42 A payment the amount of which had no link with the cost of the particular service or was calculated not on the basis of the cost of the transaction for which it is a consideration but on the basis of all the running and capital costs of the department responsible for that transaction would have to be regarded as a tax falling solely under the prohibition of Article 10 of the directive.
43 For certain transactions such as, for example, the registration of a company, it may be difficult to determine their cost. In such a case the assessment of the cost can only be on a flat-rate basis and must be fixed in a reasonable manner, taking account, in particular, of the number and qualification of the officials, the time they take and the various material costs necessary for carrying out the transaction.
Duties of amounts varying according to the legal form of the company
44 Member States are not prohibited by any provision of the Directive, in particular Article 12(2), which merely prohibits certain forms of discrimination affecting all capital companies, from fixing different amounts for the registration of public limited companies and that of private limited companies, subject nevertheless, as the Commission, Cispadana and Ponente Carni emphasize, to ensuring that none of the amounts required for any of the companies exceeds the cost of the transaction of registration.