Brussels, 10 July 2006
Capital duty: Commission requests Spain to amend its legislation on the fees for the registration of capital increases in the Commercial Register
The European Commission has sent Spain a formal request to amend the way in which the fees for the registration of capital increases in the Commercial Register are applied. The Commission is of the opinion that these fees are not in line with the Capital Duty Directive as they are not calculated on the basis of the cost of the service rendered. This request is in the form of reasoned opinions, the second stage of the infringement procedure under Article 226 of the Treaty. If Spain does not amend its laws within two months, the Commission may refer the cases to the Court of Justice.
"The jurisprudence of the Court of Justice on registration fees and the Capital Duty Directive is clear" said László Kovács, the European Commissioner for Taxation and Customs Union. "Registration fees for the registration of capital increases are unlawful if calculated as a fixed percentage of the capital increase, instead of being based on the effective cost of the service rendered".
In Spain, companies have to pay registration fees for the registration of capital increases in the Commercial Register. These fees are proportional to the increase of capital and bear no relation to the costs of the service rendered. The Commission is therefore of the opinion that the way in which registration fees are calculated in Spain is contrary to Article 10(c) of the Capital Duty Directive.
Article 10(c) of the Capital Duty Directive (69/355/EEC) forbids registration fees for entering increases of the share capital of a company in a national register of legal persons, where these fees amount in reality to a tax.
This is confirmed by the European Court of Justice in Case C-264/00, in which the Court ruled that duties paid by way of fees or dues can be lawfully levied only if they constitute a remuneration, i.e. an amount which is calculated on the basis of the cost of the service rendered.
The Commission's case reference number is 2004/4843.