C-2/94

Galveston BV,

Heklicht Scheepvaartbelangen BV,

C. Roeleveld Beheer BV and Others,

R. J. Schippefeit,

Sigarenhandel Ben Sterk vof,

J. H. van Werkhoven Holding Maarssen BV

Kamer van Koophandel en Fabrieken voor Amsterdam Amsterdam,,

Kamer van Koophandel en Fabrieken voor Utrecht en Omstreken

on the interpretation 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, C. N . Kakouris, D . A. O . Edward, J.-P. Puissochet (Rapporteur) and G. Hirsch (Presidents of Chambers), G. F. Mancini, F. Α. Schockweiler, J. C. Moitinho de Almeida, C. Gul- mann, J. L. Murray, P. Jann, H . Ragnemalm and L. Sevón, Judges,

Advocate General: F. G. Jacobs, Registrar: L. Hewlett, Administrator,

— the defendants, by C. J. J. C. van Nispen, of the Hague Bar, and E. H . Pijnacker Hordijk, of the Amsterdam Bar,

— the Netherlands Government, by A. Bos, Legal Adviser at the Ministry of Foreign Affairs, acting as Agent,

— the Danish Government, by P. Biering, Head of Division at the Ministry of Foreign Affairs, acting as Agent,

— the Government of the Hellenic Republic, by P. Kamarineas, Deputy Legal Adviser at the State Legal Service, A. Rokofyllou, Special Adviser to the Deputy Minister for Foreign Affairs, and M. Basdeki, Legal Representative at the State Legal Service, acting as Agents,

— the United Kingdom, by S. L. Hudson, of the Treasury Solicitor's Department, acting as Agent, assisted by S. Richards and R. Thompson, Barristers,

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Judgment

1 By order of 23 November 1993, received at the Court on 5 January 1994, the Col­ lege van Beroep voor het Bedrijfsleven (Administrative Court for Trade and Indus­ try) referred to the Court for a preliminary ruling under Article 177 of the EC Treaty three questions on the interpretation 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; hereinafter 'Directive 69/335').

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2 The questions arose in proceedings between, on the one hand, the companies Den- kavit Internationaal (hereinafter 'Denkavit'), Galveston, Heklicht Scheepvaartbe- langen, C. Roeleveld Beheer and Others, R. J. Schippefeit, Sigarenhandel Ben Sterk vof and J. H . van Werkhoven Holding Maarssen, and, on the other, the defendants, which are the Chambers of Trade and Industry for Midden-Gelderland, The Hague, Amsterdam, and Utrecht and its environs, concerning the payment to the Chambers of a levy on registration.

3 The documents in the main proceedings show that, in the Netherlands, Chambers of Trade and Industry are responsible under Article 1 of the Trade Register Law of 26 July 1918, as amended, for keeping and maintaining the trade register for their respective areas.

DENKAVIT INTERNATIONAAL AND OTHERS ν KAMER VAN KOOPHANDEL EN FABRIEKEN VOOR MIDDEN-GELDERLAND AND OTHERS

5 In addition, Article 1(7) of the Law provides that all public limited companies, pri­ vate limited companies, cooperatives, mutual insurance companies and European Economic Interest Groupings within the meaning of Council Regulation (EEC) No 2137/85 of 25 July 1985 on the European Economic Interest Grouping (EEIG) (OJ 1985 L 199, p. 1) which have their registered office in the Netherlands are to be registered.

6 Under Article 9(c) of the Law, 'Where a legal person covered by Article 1 (7) is the owner of an undertaking which is registered with the Chamber of Trade and Industry in whose area the legal person has its registered office, registration of the said undertaking with the Chamber shall be deemed to constitute registration of the said legal person'.

7 Since there is no separate register for companies, the Netherlands trade register has a dual purpose. First, as a register of companies, it is deemed to satisfy the pub­ licity and registration requirements for the legal acts of companies laid down by the First Council Directive 68/151/EEC of 9 March 1968 on coordination of safe­ guards which, for the protection of the interests of members and others, are required by Member States of companies within the meaning of the second para­ graph of Article 58 of the Treaty, with a view to making such safeguards equivalent throughout the Community (OJ, English Special Edition 1968 (I), p . 41; herein­ after 'Directive 68/151'). Secondly, as a register of undertakings, it constitutes a directory and source of economic information on undertakings established within the geographical area of each Chamber of Trade and Industry.

11 The applicants in the main proceedings, none of whom are taxed at the flat-rate amount of HFL 61, brought actions before the national court following rejection by the Chambers of Trade and Industry of their complaints against decisions assessing them for payment of the registration levy.

12 The national court is uncertain, first, as to whether the registration levy is compat­ ible with Directive 69/335, having regard in particular to the judgment in Joined Cases C-71/91 and C-178/91 Ponente Carni and Cispadana Costruzioni v Ammin- istrazione delle Finanze dello Stato [1993] ECR I-1915 (hereinafter 'the judgment in Ponente Carni').

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DENKAVIT INTERNATIONAAL AND OTHERS ν KAMER VAN KOOPHANDEL EN FABRIEKEN VOOR MIDDEN-GELDERLAND AND OTHERS

13 It also wishes to know, should the Court of Justice interpret Directive 69/335 as precluding the imposition of a registration levy of the type in dispute, whether in the light of the Court's case-law, and in particular its judgment in Case C-208/90 Emmott ν Minister for Social Welfare and the Attorney General [1991] ECR I-4269, Chambers may rely on a 30-day time-limit, such as the time-limit for bringing administrative complaints and legal actions'set by the Law on Adminis­ trative Actions concerning the Organization of the Economy, in order to resist claims by a company for the refund of fees it considers to have been unlawfully levied. The order for reference shows that that period had expired when Denkavit, in particular, lodged its complaint.

1 4 The College van Beroep voor het Bedrijfsleven therefore stayed the proceedings pursuant to Article 177 of the EC Treaty and referred the following questions to the Court of Justice for a preliminary ruling:

2. If (one of) the above question(s) is(are) answered in the affirmative:

Can the concept of "duties paid by way of fees or dues" used in Article 12(e) of Council Directive 69/335/EEC also include a duty such as the levy imposed by a Chamber of Trade and Industry which, apart from covering the costs incurred by the Chamber in making the registrations in its trade register, is also used to finance tasks and activities which the Chamber performs in the interests of all undertakings in its area, the costs of such tasks and activities being spread among the undertakings by reference to the economic impor­ tance of the undertakings as expressed — primarily — in the undertaking's working capital?

3. If it must be assumed that a levy such as that referred to in the above ques­ tions is unlawful, can failure to comply with the time-limit prescribed by national law for the exercise of a legal remedy not be raised, so long as the provisions of national legislation on which the levy is based and which are incompatible with Directive 69/335/EEC have not been repealed, as a defence to a claim by an individual who in a dispute brought before a national court pleads that illegality by reference to that directive?'

15 The Court must first recall the purpose and content of Directive 69/335, as described in the judgment in Ponente Carni.

16 As its preamble shows, Directive 69/335 is intended to promote the free movement of capital, which is regarded as essential for the creation of an economic union

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20 Directive 69/335 also provides, in accordance with the final recital in its preamble, for the abolition of other indirect taxes with the same characteristics as capital duty

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JUDGMENT OF 11. 6. 1996 — CASE C-2/94

or stamp duty on securities, the retention of which might frustrate the objectives pursued. Those indirect taxes, collection of which is prohibited, are listed in Arti­ cles 10 and 11 of the directive. Article 10 provides:

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

(a) in respect of the transactions referred to in Article 4;

22 In its first question, the national court asks, essentially, whether a tax such as the Netherlands trade register levy, inasmuch as it is payable annually by virtue of the registration of an undertaking with a Chamber of Trade and Industry, and inas­ much as that operation also serves, where the undertaking is owned by a capital company, as registration of that company, but without that latter formality being accompanied by an increase in the levy in question, falls within the scope of Arti­ cle 10(c) of Directive 69/335.

25 Such a levy is unrelated to the legal form of the entity which owns the undertaking in respect of which the levy is due. It may just as well be a natural person as a legal person, or a partnership as a capital company. Conversely, a company which does not own any undertaking is not subject to the levy, and a company which does not own an undertaking within the geographical area of the Chamber of Trade and Industry in which it has its registered office is not required to make payment to that Chamber.

26 The levy in question cannot therefore be linked to formalities to which capital companies may be made subject by reason of their legal form. Thus, an undertak­ ing whose owner adopts the form of a capital company in the course of a year is not required to pay it a second time. Moreover, if in the following year that new legal person does not pay the levy, it does not thereby lose the benefit of its reg­ istration as a company.

27 That being so, the Netherlands levy at issue differs from the Italian administrative charge at issue in the Ponente Carni judgment. That charge was levied specifically on the registration of companies in the register of commercial companies and lev­ ied annually thereafter merely for retaining their registration.

28 That interpretation is not called into question by the fact that, under the Nether­ lands legislation, the registration of an undertaking with a Chamber of Trade and Industry also serves as registration of the legal person which owns the undertak­ ing, whenever the registered office of that legal person is situated within the geo­ graphical area of the same Chamber. That provision, which was, moreover, intro­ duced merely in order to implement Directive 68/151, cannot in itself alter the event giving rise to the tax in question and transform it into one due by virtue of the registration of the legal person which owns the undertaking, especially since it is not accompanied by any increase in the levy.

31 In those two judgments, the Court held that a mere financial holding in other undertakings did not constitute an economic activity within the meaning of the Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonization of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p . 1; hereinafter 'the Sixth Directive'). It added, however, that that did not apply where such a holding was accompanied by direct or indirect involvement in the management of the compa­ nies in question, without prejudice to the holder's rights in his capacity as a share­ holder or a member of the company. In any event, the interpretation adopted by

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the Court concerns only the Sixth Directive. It cannot, in particular, bind the Member States in an area in which Community law does not contain any specific provision intended to exclude or limit their competence. As the defendants in the main proceedings and the Commission pointed out at the hearing, the definition of an 'undertaking' for the purposes of the legislation at issue is a matter for the Netherlands legislature.

32 The answer to Question 1 must therefore be that Article 10(c) of Directive 69/335 must be interpreted as not prohibiting a levy which is payable annually by virtue of the registration of an undertaking with a Chamber of Trade and Industry, even if that operation also serves, where the undertaking is owned by a capital company, as registration of that company, without that latter formality being accompanied by an increase in the levy in question.

are, for the parties to the main proceedings, a step in the proceedings pending before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT ,

in answer to the questions referred to it by the College van Beroep voor het Bedrijfsleven by order of 23 November 1993, hereby rules:

Article 10 (c) of Council Directive 69 10( /335 69/ /EEC of 17 July 1969 concerning 335/ indirect taxes on the raising of capital must be interpreted as not prohibiting a levy which is payable annually by virtue of the registration of an undertaking Industry,, even if that operation also serves with a Chamber of Trade and Industry serves,, company,, as registration of that where the undertaking is owned by a capital company company,, without that latter formality being accompanied by an increase in company question.. the levy in question

Rodríguez Iglesias Kakouris Edward Puissochet