SONAE - Tecnologia de Informação SA v Direcção-Geral dos Registos e Notariado.
Date: 2001-06-21
23 In that regard, it is clear that under the Portuguese legislation capital companies are required to have increases in their share capital recorded in the Commercial Register and when that record is made to pay registration duties, the proceeds of which go to the Fund. The Fund bears not only the costs of setting up and operating the Commercial Register but also the operating costs of the National Register of Legal Persons, the payment of the fixed portion of the salaries payable to notaries and other legal officials, and, following authorisation from the Ministry of Justice, it covers other expenditure arising from the conduct of legal business (see Case C-56/98 Modelo [1999] ECR I-6427, paragraph 20).
24 It follows that the charges at issue in the main proceedings, payable pursuant to a rule of law laid down by the State, are paid by a private individual to the State for the financing of its official business (see Modelo, paragraph 21).
25 In the light of the aims of the Directive, in particular the abolition of indirect taxes having the same characteristics as capital duty, registration duties collected by the State for an operation covered by the Directive, which are paid to the State in order to subsidise public expenditure, must be regarded as taxes for the purposes of the Directive (see Modelo, paragraph 22).
26 It follows that charges such as those at issue in the main proceedings, levied when an increase in a company's share capital is recorded in a commercial register, constitute a tax within the meaning of Directive 69/335.
27 It is therefore also necessary to determine whether such charges are covered by the prohibition in Article 10 of Directive 69/335 or whether they constitute duties paid by way of fees or dues within the meaning of Article 12(1)(e) of Directive 69/335.
28 As regards, first, Article 10 of Directive 69/335, subparagraph (c) of that article prohibits the charging, apart from capital duty, of taxes in respect of registration or any other formality required before the commencement of business, to which a company may be subject by reason of its legal form. That prohibition is justified by the fact that even though the taxes in question are not levied on capital contributions as such, they are nevertheless levied on account of formalities connected with the company's legal form, that is to say, on account of the instrument employed for raising capital, so that their continued existence would similarly risk frustrating the aims of the Directive (Case C-2/94 Denkavit International and Others [1996] ECR I-2827, paragraph 23, and Modelo, paragraph 24).
29 It is thus settled law that that prohibition covers not only charges paid for the registration of new companies, but also those payable by companies for the registration of increases in capital since these, too, are levied on account of an essential formality connected with the legal form of the companies in question. While registration of an increase in capital is not, strictly speaking, a formality required before the commencement of business by a capital company, it is none the less necessary for the carrying on of that business (see, in particular, Case C-134/99 IGI [2000] ECR I-7717, paragraph 23).
30 Since under the legal rules at issue in the main proceedings it is compulsory to record any increase in a capital company's share capital in the Commercial Register, the recording of that increase constitutes an essential formality connected with the legal form of the company and it is necessary for the carrying on of the company's business.
31 It follows that where they constitute a tax within the meaning of Directive 69/335 charges for recording an increase in the share capital of a company in a commercial register, such as those in issue in the main proceedings, are in principle prohibited by Article 10(c) of that directive.
32 As regards, next, Article 12(1)(e) of Directive 69/335, the distinction drawn between taxes prohibited by Article 10 of that directive and duties paid by way of fees or dues, which can lawfully be imposed, implies that the latter comprise only remuneration the amount of which is calculated on the basis of the cost of the service rendered. Where the amount payable is wholly unrelated to the cost of the service in question or is calculated, not by reference to the costs of the transaction for which it constitutes the consideration, but to all the operational and capital costs incurred by the office responsible for that transaction, it must be regarded as a tax falling exclusively within the prohibition laid down in Article 10 of Directive 69/335 (Joined Cases C-71/91 and C-178/91 Ponente Carni and Cispadana Costruzioni [1993] ECR I-1915, paragraphs 41 and 42).
33 Furthermore, although it may be difficult to determine the cost of certain transactions, for example the registration of a company, so that the cost can only be assessed on a flat-rate basis, it must be determined 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 (see, in particular, IGI, paragraph 27).
34 Moreover, in accordance with the case-law of the Court, charges with no upper limit which increase directly in proportion to the nominal value of the capital raised cannot, by their very nature, amount to duties paid by way of fees or dues within the meaning of the Directive. Even if there may be a link in some cases between the complexity of a registration and the amount of capital raised, the amount of such charges will generally bear no relation to the costs actually incurred by the administration for registration formalities (Case C-188/95 Fantask and Others [1997] ECR I-6783, paragraph 31, and IGI, paragraph 31).
42 That conclusion is also consistent with the interpretation of Directive 69/335 adopted by the Court in Ponente Carni and Cispadana Costruzioni. It follows from paragraph 44 of that judgment that, although the charge for a service rendered may differ according to the legal form of the company, the amount may not exceed the cost of the service in question.
46 In accordance with settled case-law, it must be held that the question referred to the Court for a preliminary ruling does not involve an interpretation of Community law objectively required for the decision to be taken by the national court (see, in particular, Case C-375/96 Zaninotto [1998] ECR I-6629, paragraph 79).