Commission of the European Communities v Hellenic Republic.
Date: 2002-03-19
12 It is clear from Royal Decree No 22/1956 that levies are payable to the Lawyers' Welfare Fund in the amounts of 1% of the capital of partnerships and private limited liability companies on the publication of the statutes of those companies at the Polimeles Protodikio Athinon (Court of First Instance, Athens) (Greece) and two thirds of the stamp duty (0.5% of the capital) on publication of the acts extending the period of existence of those companies.
Pre-litigation procedure
23 It should be observed, first, that it is settled case-law that the nature of a tax, duty or charge must be determined under Community law according to the objective characteristics by which it is levied, irrespective of its classification under national law (see, to that effect, Joined Cases C-197/94 and C-252/94 Bautiaa and Société française maritime [1996] ECR I-505, paragraph 39; and Case C-4/97 Nonwoven [1998] ECR I-6469, paragraph 19).
24 Second, Article 10 of Directive 69/335, read in the light of the last recital in the preamble to that directive, prohibits in particular indirect taxes with the same characteristics as capital duty. It thus refers to, inter alia, any taxes whatsoever which are payable in respect of the formation of a capital company or an increase in its capital (Article 10(a)) or 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 (Article 10(c)). That latter prohibition is justified by the fact that, even though the taxes in question are not imposed on capital contributions as such, they are nevertheless imposed on account of formalities connected with the company's legal form, in other words 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 Internationaal and Others [1996] ECR I-2827, paragraph 23).
25 Since Directive 69/335 precludes the levying of any taxes whatsoever on transactions falling within its scope and does not prohibit only the imposition of indirect taxes, the Hellenic Government's argument designed to demonstrate that the charges at issue do not constitute indirect taxes but are in the nature of employers' contributions is not relevant.
29 As regards the charges levied under those two national provisions where a private limited liability company increases its capital within 12 months of its formation, the Court finds that those charges are prohibited under Article 10(c) of Directive 69/335, since they are payable in respect of formalities which, although not formally amounting to a procedure required before such a company commences business, are none the less necessary for the carrying on of that business (see, to that effect, Case C-188/95 Fantask and Others [1997] ECR I-6783, paragraph 22).
30 As regards, finally, the charge levied under Royal Decree No 22/1956 in respect of the publication at the Polimeles Protodikio Athinon of the original or amended statutes of partnerships and private limited liability companies having their registered office in the judicial district of that court, it should be noted that it is not disputed that that publication constitutes a statutory obligation for those companies. It follows that it must be regarded as either a formality required before the commencement of those companies' business or a formality which is necessary for the carrying on of that business, for the purposes of Article 10(c) of Directive 69/335. Accordingly, the charge levied on that occasion is covered by the prohibition imposed by that provision.
35 In that regard, it should be recalled, first, that it is settled case-law that the distinction drawn between taxes prohibited by Article 10 of Directive 69/335 and duties paid by way of fees or dues, which can lawfully be imposed under Article 12(1)(e) of that directive, 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 of the remuneration 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 department 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 (see, inter alia, Case C-56/98 Modelo [1999] ECR I-6427, paragraph 29; and Case C-206/99 SONAE [2001] ECR I-4679, paragraph 32).
36 It must also be noted that a duty cannot be said to be paid by way of fees or dues within the meaning of Article 12(1)(e) of Directive 69/335 if it is not wholly for the exclusive benefit, in whatever form, of the natural or legal person which provides or finances the service for which the duty is supposed to constitute consideration.
42 It is clear from the case-law of the Court that although, exceptionally, in application of the general principle of legal certainty inherent in the Community legal order, the Court may decide to limit the effects in time of a judgment declaring that a Member State has failed to fulfil one of its obligations under Community law, the financial consequences which may ensue for a State from a judgment of the Court have never in themselves justified limiting its effects. To limit the effects of a judgment solely on the basis of such considerations would considerably diminish the judicial protection of the rights which individuals have under Community law (see, to that effect, Case C-35/97 Commission v France [1998] ECR I-5325, paragraphs 49 and 52).