Senior Engineering Investments BV v Staatssecretaris van Financiën.
Date: 2006-01-12
25. 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 (see, in particular, in relation to a financial contribution paid to the subsidiaries of a company which increased its capital, Case C-339/99 ESTAG  [2002] ECR I-8837, paragraphs 44 to 47).
26. Furthermore, it follows from the sixth recital in the preamble to and Article 2 of Directive 69/335 that duty on the raising of capital should be charged only once (see, to that effect, in particular, Joined Cases C-71/91 and C‑178/91 Ponente Carni and Cispadana Costruzioni  [1993] ECR I‑1915, paragraph 19, and Case C-236/97 Codan  [1998] ECR I‑8697, paragraph 27).
29. In that connection, Article 4 of Directive 69/335 specifies the transactions on which the Member States may or must, according to the category, impose capital duty (see, to that effect, in particular, Case C-280/91 Viessmann  [1993] ECR I‑971, paragraph 12, and Case C-152/97 Agas  [1998] ECR I-6553, paragraphs 19 and 20).
33. A comparison of those two provisions prompts the finding, in line with the view put forward by the Netherlands Government, that the ‘increase in the capital’ referred to in Article 4(1)(c) of Directive 69/335 means a formal increase of a company’s capital by means either of an issue of new shares or by an increase in the nominal value of the existing shares (see, to that effect, Case 270/81 Felicitas Rickmers-Linie  [1982] ECR 2771, paragraph 15, and Case 36/86 Dansk Sparinvest  [1988] ECR 409, paragraph 13).
34. On the other hand, and to the extent to which the assets of the company are defined as all the property which the members have contributed, together with any increase in its value (see, to that effect, Case C-38/88 Siegen  [1990] ECR I-1447, paragraph 12), the ‘increase in the assets’ within the meaning of Article 4(2)(b) of the Directive includes, in principle, every kind of increase in the net assets of a capital company. Thus, the Court has described as an ‘increase in the assets’ within the meaning of that provision, for example, a transfer of profits (see Case C-49/91 Weber Haus  [1992] ECR I-5207, paragraph 10), an interest-free loan (see, in particular, Case C-392/00 Norddeutsche Gesellschaft zur Beratung und Durchführung von Entsorgungsaufgaben bei Kernkraftwerken  [2002] ECR I‑7397, paragraph 18), an absorption of losses (see Siegen , paragraph 13), and the waiver of a claim (Case C‑15/89 Deltakabel  [1991] ECR I-241, paragraph 12).
39. Third, the contribution in question is a ‘provision of services by a member’. It is true that that contribution was paid not by a member of Senior GmbH (Senior BV) but by the parent company of the latter (Senior Limited), and thus by a member of a member. However, it must be borne in mind that the Court has adopted, with regard to the origin of contributions, an informal approach based on the real appropriation of the contribution (see, to that effect, Weber Haus , paragraphs 11 and 13; ESTAG , paragraphs 37 to 39 and 41; and Case C-71/00 Develop  [2002] ECR I-8877, paragraphs 25 to 29). As the contribution in question was paid by the grandparent company (Senior Limited) to the sub-subsidiary (Senior GmbH) in order to increase the value of the shares in the latter, and as that increase was primarily in the interests of its sole member, namely Senior BV, it must be held that that contribution must be attributed to the latter, that is to say Senior BV. It is therefore a ‘provision of services by a member’ within the meaning of Article 4(2)(b) of Directive 69/335.
43. Similarly, it is of little importance that the Member State with authority under Article 2(1) of Directive 69/335 to tax the sub-subsidiary (Senior GmbH), namely the Federal Republic of Germany, did not in fact do so, because capital duty has been abolished there since 1 January 1992. The Member States are free, under Article 7(2) of Directive 69/335, to exempt contributions to companies from capital duty, without such exemption entailing the consequence that another Member State is entitled to tax them. On the contrary, Directive 69/335 favours and encourages both specific exemptions from capital duty (Articles 7(1) and (3), 8 and 9) and complete abolition (Article 7(2)). The Directive cannot therefore be interpreted as enabling a Member State to benefit, so as to increase its tax revenue, from the fiscal moderation of another Member State.