Ponente Carni SpA y Cispadana Costruzioni SpA contra Amministrazione delle finanze dello Stato.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Grévisse
• ECLI: ECLI:EU:C:1993:140
• Docket Number: C-178/91,C-71/91
• Date: 20 April 1993
• Procedure Type: Reference for a preliminary ruling

Avis juridique important

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61991J0071

Judgment of the Court of 20 April 1993. - Ponente Carni SpA and Cispadana Costruzioni SpA v Amministrazione delle Finanze dello Stato. - References for a preliminary ruling: Tribunale di Genova and tribunale di Milano - Italy. - Directive 69/335/CEE - Register of companies - Registration of companies' instruments of incorporation - Annual charge. - Joined cases C-71/91 and C-178/91.

European Court reports 1993 Page I-01915

Summary
Parties
Grounds
Decision on costs
Operative part

Keywords

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Tax provisions ° Harmonization of laws ° Indirect taxes on the raising of capital ° Registration of capital companies ° Collection of taxes not covered by the derogations contained in Directive 69/335 ° Not permissible ° Derogation ° Duties paid by way of fees or dues ° Concept

(Council Directive 69/335, Arts 10 and 12(1)(e))

Summary

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.

The said Article 12 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 transactions 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, but may not be calculated on the basis of all the running and capital costs of the department responsible for effecting the registration.

Parties

In Joined Cases C-71/91 and C-178/91,

REFERENCES to the Court under Article 177 of the EEC Treaty by the President of the Tribunale di Genova in Case C-71/91 and by the President of the Tribunale di Milano in Case C-178/91 for preliminary rulings in the proceedings pending before those courts between

Ponente Carni SpA

and

Amministrazione delle Finanze dello Stato,

and between

Cispadana Costruzioni SpA

and

Amministrazione delle Finanze dello Stato,

on the interpretation of Articles 10 and 12 of Council Directive 69/335/EEC of 17 July 1969 concerning indirect taxes on the raising of capital (OJ, English Special Edition 1969 (II), p. 412),

THE COURT,

composed of: G.C. Rodríguez Iglesias (President of Chamber), acting for the President, M. Zuleeg and J.L. Murray (Presidents of Chambers), G.F. Mancini, R. Joliet, F.A. Schockweiler, J.C. Moitinho de Almeida, F. Grévisse and D.A.O. Edward, Judges,

Advocate General: F.G. Jacobs,

Registrar: L. Hewlett, Administrator,

after considering the written observations submitted on behalf of:

° Ponente Carni, by Giuseppe Conte and Giuseppe Michele Giacomini, of the Genoa Bar,

° Cispadana Costruzioni, by Ernesto Beretta and Aldo Bozzi, of the Milan Bar,

° the Italian Republic, by Professor Ferrari Bravo, Head of the Department for Legal Affairs of the Ministry of Foreign Affairs, acting as Agent, assisted by Ivo M. Braguglia, Avvocato dello Stato,

° the United Kingdom, by John E. Collins, of the Treasury Solicitor' s Department, acting as Agent,

° the Kingdom of the Netherlands, by B.R. Bot, Secretary General in the Ministry of Foreign Affairs, acting as Agent,

° the Commission of the European Communities, by Enrico Traversa, of its Legal Service, acting as Agent,

having regard to the Report for the Hearing,

after hearing the oral observations of Ponente Carni SpA, Cispadana Costruzioni SpA, the Italian Government, the Netherlands Government and the Commission at the hearing on 8 July 1992,

after hearing the Opinion of the Advocate General at the sitting on 30 September 1992,

gives the following

Judgment

Grounds

1 By order of 14 January 1991, received at the Court on 21 February 1991, the President of the Tribunale di Genova (District Court, Genoa) referred four questions to the Court for a preliminary ruling under Article 177 of the EEC Treaty on the interpretation of Articles 10 and 12 of Council Directive 69/335/EEC of 17 July 1969 concerning indirect taxes on the raising of capital (hereinafter "the Directive").

2 By order of 27 June 1991, received at the Court on 8 July 1991, the President of the Tribunale di Milano (District Court, Milan) referred three questions to the Court for a preliminary ruling under Article 177 of the EEC Treaty on the interpretation of the same provisions.

3 The two cases were joined by order of the President of the Court of 11 May 1992.

4 The questions put by the order of 14 January 1991 in Case C-71/91 were raised in proceedings between Ponente Carni SpA and the Amministrazione delle Finanze dello Stato in relation to the "tassa di concessione governativa" (administrative charge) for the registration of companies in the register of companies.

5 That charge, introduced by Presidential Decree No 641 of 26 October 1972 (GURI No 292 of 11 November 1972, Supplement No 3) applies to the registration in the register of companies of the principal measures concerning the existence of companies. The register is kept by court registrars pending the creation of the register of companies provided for by Article 2188 of the Codice Civile.

6 The amount of the administrative charge and the period covered thereby, in so far as it applies to the registration of companies' instruments of incorporation has been repeatedly amended.

7 The amount of the charge for registration was increased from LIT 81 000 to LIT 5 000 000 for public limited companies and limited partnerships with a share capital, to LIT 1 000 000 for private limited companies and to LIT 100 000 for other companies by Article 3(18) of Decree-Law No 853 of 19 December 1984 (GURI No 347 of 19 December 1984), converted...