Energie Steiermark Holding AG v Finanzlandesdirektion für Steiermark.
Date: 2002-10-17
30 Where, on an increase in capital, the payment of a price to acquire a shareholding, which is greater than the nominal value of that holding, is an essential condition of the acquisition of that holding, as ESTAG has admitted in relation to the situation at issue in the main proceedings, the various payments made to make up that price are to be regarded as constituting the contribution conferring entitlement to that holding and, therefore, as coming within the scope of Article 4(1)(c) of Directive 69/335.
31 That interpretation is supported by Article 5(1)(a) of that directive, which provides that the basis of assessment for the charging of capital duty is made up of the actual value of the contributions made to finance the transaction in question.
32 In a transaction such as that in issue in the main proceedings, the actual value of the contributions made in connection with an increase in the capital of a capital company corresponds to the nominal value of the shares issued, plus the value of the additional payments received.
33 It follows that payments such as those in issue in the main proceedings come within the scope of Article 4(1)(c) of Directive 69/335, even though their amount exceeds the nominal value of the increase in capital which has taken place.
37 As is clear from paragraph 11 of the judgment in Case C-49/91 Weber Haus [1992] ECR I-5207, in order to decide whether or not a transaction falls within the scope of Article 4(2)(b) of Directive 69/335, it is necessary to adopt an economic approach, and not a formal one based solely on the source of the contributions.
38 By analogy, where it is a question of deciding whether contributions come within the ambit of Article 4(1)(c) of Directive 69/335, it is appropriate to ask who must be deeme
d to have paid them and not to limit the enquiry to the identification of their formal source.
39 In a situation such as that in the main proceedings, which is characterised, first, by the fact that the company which has contracted to make certain payments in order to acquire a holding in another company is the subsidiary of the company which has actually made those payments and, secondly, by the fact that such payment has discharged the liability of that subsidiary, the payment is to be regarded as having been made by the subsidiary in its capacity as a member of the company which is increasing its capital.
44 The latter position is adopted with good reason.  In order to determine whether a transaction comes within the scope of Directive 69/335, it is appropriate not only to check that the transaction is one of those listed in Article 4 thereof, but also to take into account the context in which it is carried out, as is clear from paragraphs 37 and 38 of this judgment.
45 Therefore, any payment which a new member of a capital company which is increasing its capital by the issue of new shares has made to a subsidiary of that company, when it is clear from the circumstances of the case that, from an economic point of view, the real recipient of those payments is that company, is to be regarded as covered by the expression `contribution of assets of any kind' within the meaning of Article 4(1)(c) of Directive 69/335.
46 In a situation such as that in the main proceedings, in which the capital of the companies receiving the payments is almost entirely held by a single company and, in addition, as is clear from the order for reference, that company not only gives the instructions that those payments are to be made, but can freely decide the amount thereof which each of its subsidiaries is to receive, and even that it should be the sole recipient, that company is to be regarded as being, from an economic point of view, the real recipient of those payments.
47 In those circumstances, the answer to the second question must be that Article 4(1)(c) of Directive 69/335 is to be interpreted as meaning that the expression `contribution of assets of any kind' 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 circumstances of the case that, from an economic point of view, the real recipient of those payments is that company.
The third question
49 In that regard, it is appropriate to point out that Articles 4(1)(c) and 5(1)(a) of Directive 69/335 do not specify the point at which the chargeable event for capital duty occurs.
50 However, as the Advocate General pointed out in point 39 of his Opinion, it is clear from Article 5(1)(a) of Directive 69/335 that future contributions may also give rise to the levying of capital duty.  Payments which a natural or legal person is obliged to make and which are definite are to be regarded as coming within the scope of that provision.
51 Where, as in the main proceedings, the payment is made into the account of a third party but, because of the existence of a condition precedent, it is not certain that the payment is actually due, the member's obligation to make the payment in question becomes real and undisputed only at the time when that condition is fulfilled. Therefore, it is only as from that time that the said payment is to be regarded as amounting to a contribution within the meaning of Article 4(1)(c) of Directive 69/335.
54 In that regard, it is appropriate to recall that, in paragraph 17 of the judgment in Case C-249/89 Trave-Schiffahrtsgesellschaft [1991] ECR I-257, the Court held that, in the absence of particular expenses linked to the obtaining of an interest-free loan granted to a company by one of its members, the basis of assessment to be used under Article 5(1)(d) of Directive 69/335 for the calculation of capital duty is the amount of interest saved by the said company.