31.3.2012

Official Journal of the European Union

C 98/7

(Case C-372/10) (<span class="super">1</span>)

(Taxation - Indirect taxes on the raising of capital - Capital duty levied on capital companies - Obligation on a Member State to take account of directives which were no longer in force at the time of that State’s accession - Exclusion, from the amount on which capital duty is charged, of the amount of the assets belonging to the capital company which are allocated to the increase in capital and which have already been subjected to capital duty)

2012/C 98/08

Language of the case: Polish

Referring court

Parties to the main proceedings

Applicant: Pak-Holdco sp. z o.o.

Respondent: Dyrektor Izby Skarbowej w Poznaniu,

Re:

Reference for a preliminary ruling — Naczelny Sąd Administracyjny — Interpretation of Articles 5(3), first indent, and 7(1) 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) and of Council Directive 73/79/EEC of 9 April 1973 (OJ 1973 L 103, p. 13) and Council Directive 73/80/EEC of 9 April 1973 (OJ 1973 L 103, p. 15) amending Directive 69/335/EEC — Capital duty levied on capital companies — Obligation on a Member State to take account of directives which were no longer in force at the time of that State’s accession

Operative part of the judgment

1.In the case of a State such as the Republic of Poland, which acceded to the European Union on 1 May 2004, in the absence of derogating provisions in the Act of Accession of that State to the European Union or in any other European Union document, Article 7(1) of Council Directive 69/335/EEC of 17 July 1969 concerning indirect taxes on the raising of capital, as amended by Council Directive 85/303/EEC of 10 June 1985, must be interpreted to mean that the mandatory exemption provided for in that provision applies only to those transactions coming within the scope of that directive, as amended, which, on 1 July 1984, were exempted, in that State, from capital duty or were subject to that duty at a reduced rate of 0,50% or less.

2.The first indent of Article 5(3) of Directive 69/335, which excludes ‘the amount of the assets belonging to the capital company which are allocated to the increase in capital and which have already been subjected to capital duty’ from the amount on which duty is charged, must be interpreted to mean that it applies irrespective of whether the assets in question are assets of the company which has had an increase in capital or assets coming from another company which have increased that capital.

(<span class="super">1</span>) OJ C 288, 23.10.2010.