29.8.2009

Official Journal of the European Union

C 205/4

(Case C-397/07) (1)

(Failure of a Member State to fulfil obligations - Indirect taxes on the raising of capital - Capital companies - Directive 69/335/EEC - Articles 2(1) and (3), 4(1) and 7 - Capital duty - Exemption - Conditions - Transfer of effective centre of management or of registered office from one Member State to another Member State - Capital duty on the capital allocated to commercial activities pursued in a Member State by branches or permanent establishments of companies established in another Member State)

2009/C 205/06

Language of the case: Spanish

Parties

Applicant: Commission of the European Communities (represented by: E. Gippini Fournier and M. Afonso, Agents)

Defendant: Kingdom of Spain (represented by: B. Plaza Cruz and M. Muñoz Pérez, Agents)

Re:

Failure by a Member State to fulfil its obligations — Infringement of Council Directive 69/335/EEC of 17 June 1969 concerning indirect taxes on the raising of capital (OJ, English Special Edition 1969 (II), p. 412) — Transfer of the registered office of a company — National law providing for the taxation of a transfer of registered office to the extent that the company involved is not subject to capital duty in the Member State of origin — Conditions for application of obligatory exemptions

Operative part of the judgment

The Court:

1.Declares that:

— by making the exemption from capital duty for the transactions referred to in Article 7(1)(b) of Council Directive 69/335/EEC of 17 July 1969 concerning indirect taxes on the raising of capital, as amended by Council Directive 73/79/EEC of 9 April 1973, Council Directive 73/80/EEC of 9 April 1973 and Council Directive 85/303/EEC of 10 June 1985, subject to the conditions laid down in Article 96 of the second additional provision of the consolidated version of the Spanish Law on corporation tax (Disposición Adicional Segunda del texto Refundido de la Ley del Impuesto sobre Sociedades), enacted by Royal Legislative Decree No 4/2004 of 5 March 2004;

— by subjecting to capital duty the transfer, from a Member State to Spain, of the effective centre of management or the registered office of capital companies which have not been subject to a similar tax in their country of origin, and

— by subjecting to capital duty capital allocated to commercial activities pursued in Spain by branches or permanent establishments of companies established in a Member State which does not apply a similar tax, the Kingdom of Spain has failed to fulfil its obligations under Directive 69/335, as amended by Directives 73/79, 73/80 and 85/303;

2.Dismisses the action as to the remainder;

3.Orders the Kingdom of Spain to pay the costs.

(1) OJ C 269, 10.11.2007.