Spain Referred To ECJ Over Failure To Implement Capital Duty Directive

by Ulrika Lomas, for LawAndTax-News.com, Brussels

11 July 2006

The European Commission announced on Monday that it has decided to refer Spain to the European Court of Justice for a number of infringements regarding the Capital Duty Directive.

Spain has not changed its legislation despite a formal request by the Commission dated 13 July 2005.

László Kovács, the European Commissioner for Taxation and Customs Union explained that:

"The Capital Duty Directive provides rules to make it easier to reorganise companies and to transfer their seat: these rules must be respected in order to facilitate the development of our EU companies."

The Capital Duty Directive gives Member States the right, but not the obligation, to impose capital duty at a maximum rate of 1% on the creation of a company in that Member State.

According to the Commission, certain aspects of the Spanish legislation are not in line with this Directive:

• Given that the Directive allows only the Member State where the company is created to levy capital duty, the Commission considers that Spain infringes the Directive when levying capital duty;
• On the transfer of the registered office or the effective centre of management of a company from another Member State to Spain, if the creation of the relevant company had not been subject to capital duty in the other Member State (which under the Directive has an option not to apply a capital duty);
• On capital used for trading operations carried by Spanish branches and permanent establishments of companies created in other Member States which do not levy capital duty;
• Spain solely exempts certain reorganisation transactions whereas the Directive does not give Member States the option to treat identical transactions differently.
• Finally, Spain exempts the exchange of shares where a company receives at least 75% of the issued share capital of another company. However, if that company subsequently acquires further shares, this transaction is subject to capital duty. The Commission considers that under the Directive Spain must also exempt the further exchange of shares.
  

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