Report for the Hearing in Joined Cases C-71/91 and C-178/91
I — Facts and procedure
A — Legal background to the dispute
1. Community provisions
2. The national provisions
B — Background to the disputes
The facts at the origin of the disputes in the main proceedings as described in the orders for reference and the written observations submitted to the Court are as follows:
1. In Case C-71/91
2. In Case C-178/91
C — Procedure before the Court
1. Pursuant to Article 20 of the Protocol on the Statute of the Court of Justice of the EEC, written observations were submitted by the Commission of the European Communities, represented by Enrico Traversa, of its Legal Service, acting as Agent; by the Italian Republic, represented by Ivo M. Braguglia, Avvocato dello Stato; by the United Kingdom, represented by John E. Collins, Treasury Solicitor, acting as Agent; by the Kingdom of the Netherlands, represented by B. R. Bot, Secretary General at the Ministry of Foreign Affairs, acting as Agent; by Ponente Carni, represented by Giuseppe Conte and Giuseppe Michele Giacomini, of the Genoa Bar; and by Cispadana Costruzioni, represented by Ernesto Beretta and Aldo Bozzi, of the Milan Bar.
2. By order of 11 May 1992 the two cases were joined for the purposes of the oral procedure and the judgment.
3. Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General the Court further decided to open the oral procedure without any preparatory inquiry. It did, however, ask the Italian Republic to reply to several questions.
4. On the basis of Article 55(2) of the Rules of Procedure Ponente Carni and Cispadana Costruzioni asked that the cases be given priority over others.
II — Summary of the written observations submitted to the Court
The admissibility of the questions referred to the Court for a preliminary ruling
Ponente Carni and the Commission submit that the fact that the questions were raised in the course of summarycourt proceedings does not, in accordance with the case-law of the Court, affect the admissibility of the questions.
Substance
A — The subject-matter of the questions referred to the Court for a preliminary ruling
1. The Italian, Netherlands and United Kingdom Governments propose that the question of whether the administrative charge falls within the field of application of Directive 69/335, and more particularly whether it is covered by the prohibition laid down in Article 10 thereof, should first be examined. If the reply to that question proves negative, as they maintain it should, the other questions concerning the interpretation of the provisions allowing for exemption from Article 12 of the directive would become devoid of purpose.
2. The Commission points out that these questions, especially the questions concerning the definition of duties paid by way of fees or dues, have not yet been expressly examined by the Court, in particular in the two judgments in which the Court had occasion to interpret Articles 10 and 12 of the Directive (Case 36/86 Dansk Sparinvest [1988] ECR 409 and Case 15/88 Maxi Di [1989] ECR 1391 (summary publication)).
B — Article 10 of the Directive
1. The Commission maintains that the administrative charge falls under the prohibition introduced by Article 10(c) of the directive.
2. Ponente Carni and Cispadana Costruzioni put forward arguments which are substantially identical to those of the Commission.
3. The Italian, Netherlands and United Kingdom Governments maintain, on the contrary, that the administrative charge does not fall under the prohibition laid down in Article 10 of the Directive.
C — Article 12 of the Directive
1. The concept of duties paid by way of fees or dues within the meaning of Article 12(1)(e) of the Directive
2. Application of that concept
3. The distinction made by the national rules between public limited companies and private limited companies in order to determine the amount of the charge
The two questions referred to the Court for a preliminary ruling relate to the question whether that distinction is in conformity with the provisions of the Directive. The third question raised by the President of the Tribunale di Genova concerns more particularly whether that distinction complies with the provisions of Article 12(2) of the Directive.
III — The Italian Government's replies to the questions put by the Court
(a) First question
The Italian Republic is asked to indicate the conditions under which capital duty is levied in Italy in application of Articles 2 to 9 of Council Directive 69/335/EEC of 17 July 1969.
Reply
In Italy contributions of capital to capital companies referred to in Articles 2 to 9 of the Directive are subject to registration duties governed by Presidential Decree No 131 of 26 April 1986 (GURI, ordinary supplement No 99 of 30 April 1986).
The conditions under which those duties are applied are set out in Article 2(a) of the Decree and Article 4 of the tariff annexed thereto.
(b) Second question
The Italian Republic is asked to specify the taxes and dues other than the tassa di concessione governativawhich are levied on registration of companies' instruments of incorporation in the register of companies or any other register, in particular that kept by chambers of commerce and industry.
Reply
(c) Third question
The Italian Republic is asked to specify the legal consequences attached to nonpayment by a capital company of the administrative charge (a) on registration in the register of companies of a company's instrument of incorporation and (b) on 30 June of each subsequent year.
Reply
1 Language of the case: Italian.
2 Transaltor's Note: The French version of fees or dues is droits ayant un caractère rémunératoire.