4.4.2009

Official Journal of the European Union

C 82/16

(Case C-35/09)

(2009/C 82/29)

Language of the case: Italian

Referring court

Parties to the main proceedings

Applicant: Ministero dell'Economia e delle Finanze, Agenzia delle Entrate

Respondent: Paolo Speranza

Questions referred

1.Is Article 4(1)(c) of Directive 69/335/EEC, which provides that an increase in the capital of a capital company by contribution of assets of any kind is to be subject to capital duty, to be interpreted as meaning that an actual contribution is to be taxable, but not a mere decision to increase the share capital which remains essentially unimplemented?

2.Is Article 4(1)(c) of Directive 69/335/EEC to be interpreted as meaning that the duty must be levied exclusively on the company to which the capital is contributed and not also on the public official who drafts or certifies the transaction?

3.In any event, are the means of defence afforded to that public official by the Italian legislation consistent with the principle of proportionality, in light of the fact that, under Article 38 of Decree No 131/1986 of the President of the Republic, it is irrelevant whether the resolution to increase share capital is null and void or may be annulled, and repayment of the duty paid may be effected only after a civil judgment declaring the transaction null and void or annulling it has become final?

OJ, English Special Edition, 1969 (II), p. 412.