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Under Italian law, an administrative charge was levied for the registration in the register of commercial companies of various documents relating to the existence of companies. Various companies challenged the conformity of such charges with Articles 10 and 12 of Council Directive 69/335 (concerning indirect taxes on the raising of capital).
Under Italian law, an administrative charge was levied for the registration in the register of commercial companies of various documents relating to the existence of companies. Various companies challenged the conformity of such charges with Articles 10 and 12 of Council Directive 69/335 (concerning indirect taxes on the raising of capital). The European Court of Justice made a preliminary ruling that such a charge was prohibited by Article 10, and duties paid by way of fees referred to in Article 12 included payments collected by way of consideration for transactions required by law.
The Italian authorities subsequently fixed new single charges for registration of documents to be applied retroactively, and scrapped the annual charges. In proceedings for repayment of charges levied before that date, the Corte Suprema Di Cassazione held that the repayments were subject to a time limit. The European Court held that Community law did not prevent a Member State from relying on a time limit under national law provided it applied equally to applications under domestic law.
The applicants sought repayment of the charges levied by the Italian tax authorities for the registration of the company's instruments of incorporation and its renewal in subsequent years between 1985 and 1992.
The European Court of Justice ruled that Article 10 did not allow retroactive charges for the registration of company documents in the register of companies where they did not constitute capital duty permitted by the directive. Article 12(1)(e) of the directive meant that such retroactive charges did not constitute duties paid by way of fees or dues permitted by that provision where the registrations had already given rise to charges for which the retroactive charges were intended to be a substitute, but which were not reimbursed to those who had paid them. For such retroactive charges to be permitted, their amounts had to be calculated solely on the basis of the cost of the formalities in question, and had to take account of any other charges paid in parallel which were also intended to pay for the same service rendered.
A Member State also had the option of introducing flat-rate charges and setting their amounts for an indeterminate period, as long as it ensured at regular intervals that those amounts still did not exceed the average cost of the operations concerned.
Member States could make repayment of charges levied in breach of Community law subject to a time-limit of three years, provided that that time-limit applied in the same way to actions based on Community law for repayment of such charges as to those based on national law.
Member States could not adopt provisions making repayment of a tax held to be contrary to Community law, subject to conditions relating specifically to that tax which were less favourable than those which would otherwise have been applied to repayment of the tax in question.
(Riccardo Prisco Srl v Amministrazione delle Finanze dello Stato; Ministero delle Finanze v CASER SpA (joined cases C-216/99 and C-222/99), European Court of Justice, 10 September 2002.)
