Brussels, 13 January 2005
Taxes on company capital: Commission considers Greek legislation incompatible with Capital Duty Directive
The European Commission has decided to send a formal request to Greece to amend its tax legislation applicable to the raising of capital. Greece applies capital duty when a company transfers its registered office or place of effective management to Greece and applies a general exemption from capital duty to agricultural and maritime companies. The Commission considers that these rules are contrary to the Directive concerning indirect taxes on the raising of capital (69/335/EEC) which allows Member States to subject only the formation of companies, not their transfer, to capital duty and does not allow Greece to exempt specific economic sectors from the tax. The request is in the form of a reasoned opinion, the second stage of the infringement procedure under Article 226 of the Treaty. If Greece does not amend its legislation within two months, the Commission may refer the matter to the Court of Justice.
Under Greek rules, provided for by law 1676/86, companies that transfer their registered office or their effective centre of management from another Member State or a third country to Greece are subject to capital duty when this transfer is not subject to capital duty in another EU Member State. Moreover, Greece exempts all types of agricultural and maritime companies from this tax.
The Commission is of the opinion that these two provisions of the Greek legislation are incompatible with Directive 69/335/EEC, under which Member States have the right to impose capital duty on a company that is formed within that Member State at a maximum rate of 1%. The Commission considers that the Directive does not allow the charging of capital duty on the transfer to Greece of the effective centre of management or of the registered office of a company that was formed in another Member State or in a third country. In addition, while Greece is allowed, under a 1985 amendment to the Capital Duty Directive, to exempt certain transactions from capital duty, it does not have the right to exempt completely certain sectors. In particular, the competition that exists in the maritime sector makes it even more important for Member States not to adopt provisions that are incompatible with EU law, especially when guidelines exist on state aids in the maritime sector.
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