Riccardo Prisco Srl v Amministrazione delle Finanze dello Stato (C-216/99) and Ministero delle Finanze v CASER SpA (C-222/99).

• Jurisdiction: European Union
• Date: 31 January 2002
• Court: Court of Justice (European Union)

Important legal notice

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61999C0216

Opinion of Advocate General Stix-Hackl delivered on 31January2002. - Riccardo Prisco Srl v Amministrazione delle Finanze dello Stato (C-216/99) and Ministero delle Finanze v CASER SpA (C-222/99). - References for a preliminary ruling: Tribunale di Milano and Corte d'appello di Roma - Italy. - Directive 69/335/EEC - Indirect taxes on the raising of capital - Articles 10 and 12(1)(e) - Register of companies - Registration of companies' instruments of incorporation and other company documents - Recovery of sums paid but not due - Procedural time-limits under national law - Interest. - Joined cases C-216/99 and C-222/99.

European Court reports 2002 Page I-06761

Opinion of the Advocate-General

I - Preliminary remarks

1 These two cases are among a series of references for preliminary rulings from Italian courts concerning the repayment of charges for entry on the register of undertakings, levied in violation of Council Directive 69/335/EEC of 17 July 1969 concerning indirect taxes on the raising of capital (1) (hereinafter: Directive 69/335). The present cases relate more specifically to the determination, with retroactive effect, of a flat-rate sum, a time-limit and an interest rate.

2 Following the judgment of the Court of Justice in Cases C-71/91 and C-178/91, (2) which confirmed that a registration fee levied in Italy was incompatible with Directive 69/335, numerous undertakings requested repayment of the charges they had paid. The undertakings were informed that requests for repayment were subject to a three-year time-limit. Subsequently, several parallel judgments (3) of the Court were delivered concerning the compatibility with Directive 69/335 of both that time-limit and the interest rate. In response to those decisions, rules were adopted which have themselves given rise to this reference for a preliminary ruling.

II - Legislative framework

A - Community law

3 The relevant provisions are contained in the - much amended - Directive 69/335.

4 According to the last recital of Directive 69/335:

`Whereas the retention of other indirect taxes with the same characteristics as the capital duty or the stamp duty on securities might frustrate the purpose of the measures provided for in this Directive and those taxes should therefore be abolished.'

5 According to Article 3(1) of Directive 69/335, capital companies within the meaning of the directive include limited partnerships with share capital (società per azioni and società in accomandita per azioni) and private limited companies (società a responsabilità limitata).

6 Article 4 provides inter alia:

`1. The following transactions shall be subject to capital duty:

(a) the formation of a capital company;

(b) the conversion into a capital company of a company, firm, association or legal person which is not a capital company;

(c) an increase in the capital of a capital company by contribution of assets of any kind;

(d) an increase in the assets of a capital company by contributions of assets of any kind, in consideration, not of shares in the capital or assets of the company, but of rights of the same kind as those of members, such as voting rights, a share in the profits or a share in the surplus upon liquidation;

...

2. The following transactions may be subject to capital duty:

(a) an increase in the capital of a company by capitalisation of profits or of permanent or temporary reserves;

(b) an increase in the assets of a capital company through the provision of services by a member which do not entail an increase in the company's capital, but which result in variation in the rights in the company or which may increase the value of the company's shares;

(c) a loan taken up by a capital company, if the creditor is entitled to a share in the profits of the company;

(d) a loan taken up by a capital company with a member or a member's spouse or child, or a loan taken up with a third party, if it is guaranteed by a member, on condition that such loans have the same function as an increase in the company's capital.

3. Formation, within the meaning of paragraph 1(a), shall not include any alteration of the constituent instrument or regulations of a capital company, or in particular:

(a) the conversion of a capital company into a different type of capital company;

(b) the transfer from a Member State to another Member State of the effective centre of management or of the registered office of a company, firm, association or legal person which is considered in both Member States, for the purposes of charging capital duty, as a capital company;

(c) a change in the objects of a capital company;

(d) the extension of the period of existence of a capital company.'

7 Articles 5 and 6 regulate the basis of taxation for the various types of situation described.

8 Article 7, which was amended by Council Directive 85/303/EEC of 10 June 1985, (4) largely provides for exemptions from capital duty.

9 Article 10 of Directive 69/335 provides inter alia:

`Apart from capital duty, Member States shall not charge with regard to companies, firms, associations or legal persons operating for profit, any taxes whatsoever:

...

(c) in respect of registration or any other formality required before the commencement of business to which a company, firm, association or legal person operating for profit may be subject by reason of its legal form.'

10 In Ponente Carni, (5) the Court of Justice interpreted Article 10 as follows:

`Article 10 of Directive 69/335 concerning indirect taxes on the raising of capital, which lists the taxes with the same characteristics as capital duty, collection of which is consequently prohibited, must be interpreted as prohibiting, subject to the derogating provisions of Article 12, an annual charge due in respect of the registration of capital companies even though the product of that charge contributes to financing the department responsible for keeping the register of companies.'

11 Article 12(1) provides inter alia:

`1. Notwithstanding Articles 10 and 11, Member States may charge:

...

(e) duties paid by way of fees or dues;

...'.

12 In Ponente Carni, the Court of Justice interpreted Article 12 as follows:

`... Article 12 of the Directive must be interpreted as meaning that duties paid by way of fees or dues referred to in Article 12(1)(e) may be payment collected by way of consideration for operations required by law in the public interest such as, for example, the registration of capital companies. The amount of such duties, which may vary according to the legal form taken by the company, must be calculated on the basis of the cost of the transaction, which may be assessed on a flat-rate basis.'

13 In its judgment in Fantask, (6) the Court defined its interpretation of Article 12 as follows:

`On a proper construction of Article 12(1)(e) of Council Directive 69/335/EEC 17 July 1969 concerning indirect taxes on the raising of capital, as most recently amended by Council Directive 85/303/EEC of 10 June 1985, in order for charges levied on registration of public and private limited companies and on their capital being increased to be by way of fees or dues, their amount must be increased solely on the basis of the cost of the formalities in question. It may, however, also cover the costs of minor services performed without charge. In calculating their amount, a Member State is entitled to take account of all the costs relating to the effecting of registration, including the proportion of the overheads which may be attributed thereto. Furthermore, a Member State may impose flat-rate charges and fix their amount for an indefinite period, provided that it checks at regular intervals that they continue not to exceed the average cost of the registration at issue.'

B - National law

1. General development of the legislation

14 Decree No 641 of the Italian Republic of 26 October 1972 (7) (hereinafter: `Decree No 641/72') introduced a charge for entering certain company transactions, such as company formation and capital increase, on the register of companies.

15 Article 13(2) of Decree No 641 is worded as follows:

`The taxpayer may apply for repayment of charges paid incorrectly within the time-limit of three years reckoned from the day of payment or, in the event of refusal of the document in respect of which the charge was payable, from the date of notification of the refusal.'

16 It is clear from the files that the terms `incorrectly' and `without legal basis' are construed differently in Italian legal literature and case-law.

17 Article 3 of Decree-Law No 853 of 19 December 1984, (8) converted into a law by Law No 17 of 17 February 1985, (9) established, among other things, an annual charge for maintaining an entry in the register of companies. Following the judgment in Ponente Carni, that charge was held to be incompatible with Article 10 of Directive 69/335.

18 In order to ensure that Italian legislation would, in future, be compatible with the principles of Community law laid down in Ponente Carni, Article 61 of Decree-Law No 331 of 30 August 1993 (10) (hereinafter: Decree No 331/93), subsequently converted into a law by Law No 427 of 29 October 1993, (11) reduced the registration charge to ITL 500 000 for all companies, abolished the annual levy thereof - albeit without retroactive effect - and set the charge for other company transactions requiring registration under the Italian Civil Code at ITL 250 000.

19 Article 3(138) of Law No 549 of 28 December 1995 finally abolished the annual charge in full.

20 Judgments of both the Italian Constitutional Court and the Court of Cassation confirmed that the payments made by Italian companies in the years between 1985 and 1992 were not due.

21 In its judgment No 3458 of 12 April 1996, however, the Italian Court of Cassation ruled that the reimbursement of improperly paid charges was covered by Article 13(2)...