Provisional text

OPINION OF ADVOCATE GENERAL

BRKAN

delivered on 22 April 2026 (1)

Case T‑268/25

Sampension Livsforsikring A/S

v

Skatteministeriet

(Request for a preliminary ruling from the Østre Landsret (High Court of Eastern Denmark, Denmark))

( Reference for a preliminary ruling – Taxation – Value added tax (VAT) – Article 11 of Directive 2006/112/EC – Taxable persons – ‘VAT group’ – Persons closely bound to one another by financial, economic and organisational links – Measures to prevent tax evasion or avoidance – National legislation requiring 100% ownership for certain taxable persons )

 Introduction

1.        The present case concerns the interpretation of Directive 2006/112/EC (2) (‘the VAT Directive’) and, more specifically, its provisions on the ‘VAT group’ scheme. The VAT Directive affords Member States, in the context of their national legislation, the possibility of authorising certain taxable persons to form such groups. Those groups allow a number of taxable persons to come together within a single tax entity, giving rise to far-reaching tax effects in the field of VAT.

2.        Although the Court of Justice has already been called upon to interpret the abovementioned provisions on several occasions, (3) this reference for a preliminary ruling allows the General Court to provide an additional clarification as to the conditions which Member States may impose to allow access to a VAT group. In particular, it is necessary to determine whether Member States may impose a 100% ownership requirement on certain categories of taxable persons, inter alia to prevent tax evasion or avoidance.

 Legal framework

 European Union law

3.        Under Article 2(1)(a) to (c) of the VAT Directive, certain supplies of goods, intra-Community acquisition of goods and supplies of services ‘by a taxable person’ are subject to VAT. Pursuant to the first subparagraph of Article 9(1) of the VAT Directive, ‘taxable person’ means ‘any person who, independently, carries out in any place any economic activity, whatever the purpose or results of that activity’.

4.        Article 11 of the VAT Directive provides:

‘After consulting the advisory committee on value added tax …, each Member State may regard as a single taxable person any persons established in the territory of that Member State who, while legally independent, are closely bound to one another by financial, economic and organisational links.

A Member State exercising the option provided for in the first paragraph may adopt any measures needed to prevent tax evasion or avoidance through the use of this provision.’

5.        The first paragraph of Article 11 of the VAT Directive corresponds to the second subparagraph of Article 4(4) of Sixth Directive 77/388/EEC (4) (‘the Sixth Directive’), which was repealed and replaced, with effect from 1 January 2007, by the VAT Directive. The provision contained in the second paragraph of Article 11 of the VAT Directive was introduced by the third subparagraph of Article 4(4) of the Sixth Directive, which was added to the latter by Directive 2006/69/EC. (5)

 Danish law

6.        Article 11 of the VAT Directive is transposed into Danish law by Article 47(4) of the momsloven (Law on VAT), introduced by Law No 375 of 18 May 1994, and worded as follows:

‘A number of taxable persons exclusively carrying out activities subject to registration may, on application, be registered under a single number. The customs and tax authorities may authorise persons carrying out activities subject to VAT registration to be registered under a single number with persons carrying out activities not subject to registration and persons not engaged in economic activity. The grant of that authorisation shall be subject to the condition that one of the persons (inter alia, the parent company) is the owner of the other person or persons (inter alia, subsidiaries and sub-subsidiaries) registered under the same number, inter alia by directly or indirectly holding all their capital. …’

7.        Under the first sentence of Article 47(1) of the Law on VAT, registration is mandatory for taxable persons whose activity is the supply of goods and services. However, point 1 of the second sentence of Article 47(1) of the Law on VAT provides that that obligation ‘shall not apply to the activity of supplying goods and services, which is exempt pursuant to Article 13’ of that law.

 The dispute in the main proceedings and the questions referred for a preliminary ruling

8.        The dispute in the main proceedings, between the company Sampension Livsforsikring A/S and the Skatteministeriet (Ministry of Taxation, Denmark), concerns a decision of the Skattestyrelsen (Danish Tax Agency) rejecting an application, submitted by the abovementioned company, for its VAT registration under a single number together with another company.

9.        More specifically, Sampension Livsforsikring, an insurance company, wishes to form a VAT group with the company Sampension Administrationsselskab A/S (‘the management company’), which is responsible for the management of the first company mentioned. Sampension Livsforsikring’s activities include supplies of financial services which are exempt from VAT. When that application for registration was submitted, the management company was 94% owned by Sampension Livsforsikring and 6% by two pension funds also managed by the management company.

10.      The application for registration under a single number was rejected by the Danish Tax Agency, since Sampension Livsforsikring did not own 100% of the management company, a condition laid down in Article 47(4) of the Law on VAT. Sampension Livsforsikring challenged the rejection of its application for registration, arguing that that provision of the Danish law was incompatible with Article 11 of the VAT Directive.

11.      In the context of the proceedings brought before it, the Østre Landsret (High Court of Eastern Denmark, Denmark) decided to stay the proceedings and to refer, pursuant to the preliminary ruling procedure under Article 267 TFEU, the following questions to the Court of Justice:

‘(1)      Is the first paragraph of Article 11 of [the VAT Directive], read in conjunction with the second paragraph thereof, to be interpreted as precluding legislation of a Member State, such as that at issue in the present case, under which eligibility for creating a VAT group comprising persons not engaged in activity subject to registration or not engaged in economic activity subject to the condition that one person in the VAT group directly or indirectly owns 100% of the other person or persons in the VAT group?

(2)      If question 1 is answered in the affirmative, does Article 11 of [the VAT Directive] then have direct effect in the Member States, with the result that taxable persons are entitled, vis-à-vis a Member State, to be registered as a VAT group in cases where the legislation of that Member State does not comply with that provision and cannot be interpreted in accordance therewith?’

 Analysis

12.      In line with the decision of the chamber of the General Court with jurisdiction for the present proceedings, I shall confine my answer, in this Opinion, to the first question referred for a preliminary ruling.

13.      By its first question, the referring court asks, in essence, whether Article 11 of the VAT Directive must be interpreted as precluding legislation of a Member State which makes eligibility to form a VAT group, including persons carrying out activities exempt from VAT or not engaged in economic activity, within the meaning of Article 9(1) of the VAT Directive, subject to the condition that one person in the VAT group owns, directly or indirectly, 100% of the other person or persons in the VAT group.

 Preliminary considerations

14.      As a preliminary point, it should be clarified that the question referred for a preliminary ruling does not concern whether Article 11 of the VAT Directive precludes the general rule laid down in the Danish legislation on VAT groups that a number of taxable persons exclusively carrying out activities subject to registration may, on their application, be registered under a single number. (6) The question referred concerns rather whether the abovementioned provision of the VAT Directive precludes the rule derogating from that general rule, which restricts access to a VAT group only for persons carrying out activities exempt from VAT or not engaged in economic activity. (7) For such persons, a 100% stake, held inter alia by their parent company, is needed, whereas that requirement does not apply to other persons.

15.      Next, with a view to shedding light on the context of that derogatory rule, it seems appropriate to me to clarify the reasons why the company Sampension Livsforsikring could be eligible to form a VAT group with its management company.

16.      The management company provides management services to Sampension Livsforsikring for consideration. (8) As things currently stand, that is to say, in the absence of a VAT group, the management company is required to charge VAT in respect of those services, pursuant to the Danish law transposing Article 2(1)(c) of the VAT Directive. However, Sampension Livsforsikring is unable to deduct in full the VAT charged on the services, because its activities include supplies of financial services which are exempt from VAT. (9) Consequently, Sampension Livsforsikring must ultimately bear the burden of the VAT in question.

17.      This would not, however, be the case if Sampension Livsforsikring and its management company were permitted to form a VAT group. In that situation, the management services provided between those two companies would not be subject to VAT, because a service provider belonging to a VAT group cannot be treated, individually, as a separate taxable person from the taxable person constituted by the VAT group. (10) As a result, the group would be exempt from the burden of the VAT to which the management services were previously subject.

18.      Thus, the first question referred for a preliminary ruling essentially concerns whether, and to what extent, a Member State may prevent the generation of such tax advantages by precluding eligibility to form part of a VAT group for persons carrying out activities which do not confer the right to deduct VAT, unless they are 100% owned by a group company.

19.      Lastly, in order to answer that question, a distinction should be drawn, in my view, between the first and the second paragraphs of Article 11 of the VAT Directive. The first paragraph of that provision affords Member States the possibility of introducing national legislation under which a number of persons, who are legally independent, are grouped together to form a single taxable person, provided that those persons are established within the territory of the Member State concerned and closely bound to one another by financial, economic and organisational links. That provision thus lays down the conditions to which the formation of such a VAT group is subject, while leaving to the Member States a margin of discretion in determining the specific rules governing those conditions in their national legislation. (11)

20.      In turn, the second paragraph of Article 11 of the VAT Directive permits a Member State, when exercising the option provided for in the first paragraph of that same provision, to adopt any measures needed with a view to combating tax evasion or avoidance. In addition, the Court of Justice has found that, for the application of Article 4(4) of the Sixth Directive, the Member States, in the context of their margin of discretion, were entitled to make the application of the VAT group scheme subject to certain restrictions intended to prevent abusive practices and behaviour or to combat tax evasion or avoidance, even before the introduction of the third subparagraph of that provision, now the second paragraph of Article 11 of the VAT Directive. (12)

21.      Thus, when applying Article 11 of the VAT Directive, a distinction should be made between, on the one hand, the first paragraph of Article 11 of the VAT Directive, which concerns the conditions necessary to set up a VAT group, and, on the other hand, the second paragraph of that provision, which relates to possible conditions, in addition to the necessary conditions set out in the first paragraph, to which the formation of such a group may be subject, with the sole aim of combating tax evasion or avoidance.

22.      Since the question referred for a preliminary ruling concerns the interpretation of both the first and the second paragraph of Article 11 of the VAT Directive, I will begin by considering whether the national legislation at issue, which lays down a 100% ownership requirement for certain taxable persons, can be based on the first paragraph of that provision, and in particular on the condition of close financial links. Next, I will examine whether that national provision could be justified in the light of the second paragraph of that provision of the VAT Directive.

 Interpretation of the first paragraph of Article 11 of the VAT Directive, in particular of the concept of close financial links

23.      Under the first paragraph of Article 11 of the VAT Directive, in order for a VAT group to be formed, the persons established in the territory of a Member State must be closely bound to one another by financial, economic and organisational links. Member States have no discretion as regards the concept of ‘close financial links’, which, in the context of the derogatory rule of Danish law, takes the form of the requirement of a 100% capital holding; the Court of Justice has found that that concept had to be given a uniform interpretation in order to avoid differences in the application of the VAT group scheme between one Member State and another. (13) It is true that the concept of ‘close financial links’ has not yet been defined in the case-law of the Court of Justice, but it may be inferred from that case-law that the first paragraph of Article 11 of the VAT Directive does not allow a condition of a 100% stake to be introduced nationally in order for a VAT group to be formed.

24.      In the first place, it is apparent from the case-law of the Court of Justice that the condition relating to the existence of close financial links cannot be interpreted narrowly. (14) A condition of 100% ownership constitutes a very narrow definition of such links, excluding any level of participation other than full participation.

25.      In the second place, the Court of Justice has already found that the second subparagraph of Article 4(4) of the Sixth Directive precluded a condition of national law requiring, in order for close financial links to be established, that a majority of voting rights be held in addition to a majority holding in the share capital. (15) That case-law remains relevant to the interpretation of the first paragraph of Article 11 of the VAT Directive, since that provision replaced the second subparagraph of Article 4(4) of the Sixth Directive. Accordingly, it follows from that case-law that a majority holding in the share capital is sufficient to establish the existence of close financial links for the purposes of the first paragraph of Article 11 of the VAT Directive. (16)

26.      I am therefore of the view that the first paragraph of Article 11 of the VAT Directive must be interpreted as meaning that that provision cannot serve as the basis for a condition of a 100% capital holding, as provided for in Danish law in order for persons carrying out activities which are exempt from VAT or not engaged in economic activity to be eligible to form part of a VAT group, and as acknowledged by the Danish Government at the hearing.

 Interpretation of the second paragraph of Article 11 of the VAT Directive, in particular the concept of combating tax evasion and avoidance

27.      It is next necessary to examine whether a condition such as a 100% capital holding, imposed on certain taxable persons pursuant to the derogatory rule of Danish law, may be regarded as a necessary measure, for the purposes of the second paragraph of Article 11 of the VAT Directive, which Member States are permitted to adopt in order to prevent the formation of a VAT group, on the basis of the national law transposing the first paragraph of Article 11 of that directive, from enabling tax evasion or avoidance.

28.      It is true that the Court of Justice has found, in connection with the application of the VAT group scheme, that it is for the referring court to determine whether a measure of national law is necessary and appropriate to the achievement of the objectives of preventing abusive practices and behaviour or of combating tax evasion or avoidance. (17) However, in my view, it is for the General Court to provide the referring court with relevant guidance so that that court can make that determination in the present case.

29.      In that regard, it should be observed, in the first place, that it is apparent from the case-law that, under the second paragraph of Article 11 of the VAT Directive, Member States are not only permitted to adopt administrative measures intended to combat tax evasion or avoidance, but they may also restrict the application of the VAT group scheme, (18) which requires national legislative measures. Accordingly, it follows from that fact that a Member State may, in principle, lay down, in its legislation, additional conditions for the application of the VAT group scheme, as Danish law does in the second and third sentences of Article 47(4) of the Law on VAT, provided that they are intended to combat tax evasion or avoidance and are consistent with the principle of proportionality.

30.      In the second place, a distinction should be drawn, in the context of applying the second paragraph of Article 11 of the VAT Directive, between the concepts of ‘tax evasion’ and ‘tax avoidance’, as well as that of ‘abuse’, which Member States may also prevent according to the case-law of the Court of Justice cited above. (19) Although the case-law of the Court of Justice relating to that provision does not clearly differentiate between those concepts, (20) such a distinction is made by the case-law concerning other tax provisions of EU law. (21) In addition, the EU legislature does not appear to use the terms ‘avoidance’ and ‘abuse’ as synonyms, as is clear from the distinct use made of them in various provisions of EU tax law. (22)

31.      In that regard, first, it is quite clear that a capital holding condition, as imposed by Danish law on persons carrying out activities exempt from VAT or engaged in non-economic activity, cannot constitute a measure to combat tax evasion. Tax evasion is an illegal activity. (23) That is apparent inter alia from Article 325(1) TFEU, which requires Member States to counter VAT fraud (24) and ‘any other illegal activities’. (25) However, the purpose of the Danish legislation in the present case is not to combat an illegal activity, but rather to restrict the scope of the VAT group scheme in order, according to the information provided by the Danish Government, to reduce the tax advantages arising from that scheme. A national provision of that kind does not, therefore, pursue the objective of combating tax evasion.

32.      With regard, second, to tax avoidance, it must be stated that neither the Court of Justice nor the General Court has, to date, defined that concept having regard to the second paragraph of Article 11 of the VAT Directive. Therefore, to be able to determine whether legislation such as the Danish legislation at issue is intended to prevent tax avoidance, it is essential first of all to define that concept. In determining the scope of a provision of EU law, its wording, context and objectives must all be taken into account. (26)

 The term ‘tax avoidance’

33.      First of all, it is apparent from the literal meaning of the words ‘tax avoidance’ that it leads to a reduction in the amount of tax due or paid.

34.      However, it is clear that not every reduction in the amount of tax due or paid can be regarded as tax avoidance, as that would otherwise mean extending that concept to lawful transactions which clearly cannot fall within its scope. Such is the case, for example, where a taxable activity simply comes to an end or the price of a product on offer is reduced, meaning that the taxable person pays less VAT as a consequence of the transaction. It is therefore necessary to identify those tax advantages which constitute ‘tax avoidance’.

35.      In that regard, a definite conclusion cannot, in my view, be drawn from a literal interpretation. The words used in the various language versions do not appear to have a clearly defined scope. (27)

36.      Therefore, the concept of ‘tax avoidance’ cannot be precisely defined by the literal interpretation of the second paragraph of Article 11 of the VAT Directive.

 Origin of the second paragraph of Article 11 of the VAT Directive

37.      Next, it should be observed that the origin of the second paragraph of Article 11 of the VAT Directive does not provide any indication of the exact purpose of the possibility afforded to the Member States by that provision of countering, inter alia, tax avoidance.

38.      That provision was introduced by point 1 of Article 1 of Directive 2006/69, which added a third subparagraph to Article 4(4) of the Sixth Directive. According to recital 2 of Directive 2006/69, Member States should be able to adopt provisions ‘to ensure that measures provided for in [the Sixth Directive] relating to the taxable person … are not being exploited to evade and avoid tax’.

39.      In proposing the obligation on Member States to ensure that the introduction of a VAT group scheme creates neither ‘unjustifiable benefit nor unjustified disadvantage for taxable persons’, the European Commission intended to help Member States to prevent the application of such legislation having ‘unfair results’. (28) It is, however, unclear from the proposal for Directive 2006/69 in which circumstances such advantages should be regarded as unjustifiable or such results as unfair. It appears that the Commission simply followed the Member States’ initiative, given that the Commission states in the grounds of that proposal that ‘Member States find’ that the VAT group scheme could be exploited to avoid payment of VAT. (29)

40.      Nor does the subsequent legislative procedure which culminated in the adoption of Directive 2006/69 provide clarifications as to the type of advantages which the legislature sought to prevent by introducing that provision. Neither the European Parliament (30) nor the European Economic and Social Committee (31) addressed the issue of the type of tax advantages which the concept of ‘tax avoidance’ should cover. In addition, there is no other official document on that issue, in particular one covering the reason why the Commission proposal was amended by the Council of the European Union to use the concepts of ‘tax evasion or avoidance’ rather than those of ‘unjustifiable benefit [or] unjustified disadvantage’.

41.      Therefore, the origin of that provision does not provide any guidance which would help in defining the concept of ‘tax avoidance’ within the meaning of the second paragraph of Article 11 of the VAT Directive.

 Context

42.      In the light of the foregoing, it is necessary to analyse the context of the second paragraph of Article 11 of the VAT Directive. In that regard, it should be observed that several provisions of the VAT Directive (32) and of EU tax law (33) empower Member States to adopt measures to prevent tax avoidance. It is appropriate, in my view, to adopt a uniform interpretation of the concept of ‘tax avoidance’ which could be applied not only in the field of VAT as a whole, in which the internal consistency of the directive specifically argues in favour of such an interpretation, but could also extend to other fields of taxation in which EU rules exist, such as the abovementioned directives on income tax or excise duties.

43.      Having regard to the provisions of EU tax law which also use the concept of ‘tax avoidance’, it is apparent, in the first place, from the case-law concerning the interpretation of Article 27(1) of the Sixth Directive (34) that the intention of the taxable person that is connected with a transaction giving rise to a tax advantage has no bearing on the definition of the concept of ‘tax avoidance’. (35) Indeed, according to that case-law, although the intention of the taxable person does constitute an essential element of ‘tax evasion’, the concept of ‘tax avoidance’ represents, however, a purely objective phenomenon, as intention on the part of the taxable person is not required as a condition for the existence of avoidance. (36) In particular, tax avoidance does not require the intention of the taxable person to obtain a tax advantage. (37) In my view, that interpretation of the concept of ‘tax avoidance’, developed in the context of Article 27(1) of the Sixth Directive, which was replaced by Article 395(1) of the VAT Directive, is not only relevant to the interpretation of the latter provision, but could also be relevant to the interpretation of the second paragraph of Article 11 of the VAT Directive. After all, since Article 395(1) of the VAT Directive is a general rule covering all the provisions of that directive, such an interpretation by analogy also seeks to guarantee the internal consistency of that directive.

44.      That interpretation appears to be confirmed indirectly by the approach taken by the Court of Justice in two sets of infringement proceedings concerning the transposition of Article 11 of the VAT Directive. (38) In those cases, the Court of Justice took the view that a national provision which restricted the possibility of forming a VAT group solely to undertakings in the financial sector, excluding in general all other economic sectors, could be a justified measure under the second paragraph of Article 11 of the VAT Directive. (39) It was not alleged, in those proceedings, that the laws of the Member States concerned restricting the possibility of forming a VAT group lacked a requirement for a subjective element.

45.      In the second place, it is my view that the objective element which lies at the heart of tax avoidance, within the meaning of the second paragraph of Article 11 of the VAT Directive, can be inferred by analogy from the commonly accepted, although somewhat imprecise, meaning of ‘tax avoidance’ used, inter alia, in the field of direct taxation. (40) That meaning of ‘tax avoidance’ includes inter alia the idea that, although the taxpayer’s actions are compatible with the applicable tax legislation, they run counter to the objective or the spirit of that same legislation. (41) In my view, the concept of ‘tax avoidance’ must therefore be defined as obtaining a tax advantage contrary to the purpose of tax law, with no account being taken of the taxpayer’s intention.

46.      In addition, such a definition of tax avoidance would mean a partial overlap of that concept with the concept of tax abuse, with the overlap relating to the objective element of the latter concept. After all, according to settled case-law of the Court of Justice, the objective element of tax abuse is characterised by the fact that the application of a provision of tax law results in the accrual of a tax advantage the grant of which would be contrary to the purpose of that provision. (42) However, tax abuse also requires a subjective element, namely the intention to obtain a tax advantage. (43) That partial overlap between tax abuse and tax avoidance is confirmed by the structure of Directive (EU) 2016/1164, (44) which contains, in connection with income tax, a number of measures explicitly intended to counter tax avoidance, (45) one of which is a general anti-abuse clause. (46)

47.      I am therefore of the view that it follows from an assessment in the light of the system constituted by the various sources of EU tax law that tax avoidance within the meaning of the second paragraph of Article 11 of the VAT Directive corresponds to the purely objective accrual of a tax advantage which is incompatible with the purpose of that provision, without an intention on the part of the taxable person to that end being required.

48.      It is for the Court, as a next step, to determine the purpose of the VAT group scheme in order to provide the referring court with adequate information to assess, in the light of the second paragraph of Article 11 of the VAT Directive, whether the derogatory rule of Danish law is intended to counter tax avoidance.

 Purpose of the VAT group scheme

49.      According to settled case-law, the purpose of Article 11 of the VAT Directive is to ensure, either in the interests of simplifying administration or with a view to combating abuses such as, for example, the splitting-up of one undertaking among several taxable persons so that each might benefit from a special scheme, that Member States would not be obliged to treat as taxable persons those whose ‘independence’ is purely a legal technicality. (47) The Court of Justice inferred that purpose from the grounds of the Commission proposal which led to the adoption of the Sixth Directive. (48)

50.      It follows that, although the application of the VAT group scheme does entail certain advantages connected with the simplification of administration which are of benefit both to the tax authorities and to taxable persons, the purpose of the VAT group scheme is, however, to prevent the creation of tax advantages which would not exist outside such a VAT group, and not to create such advantages.

51.      Consequently, the tax advantages arising from the inclusion of a taxable person engaged in an exempt activity (49) in the VAT group are not in line with the purpose of that scheme. The same is true of the inclusion of a person not carrying out economic activities within a VAT group, (50) since a VAT group can exercise the right to deduct VAT that such a person could not exercise. (51) Thus, the second paragraph of Article 11 of the VAT Directive must be interpreted as meaning that the abovementioned tax advantages constitute a form of tax avoidance which Member States are, in principle, permitted to counter.

52.      It is true that some Advocates General appear to have taken the view that the VAT group mechanism pursues an additional objective. According to them, that scheme could also serve to ensure ‘organisational’ fiscal neutrality. (52) More specifically, in their view, a further objective of the VAT group scheme is that organisational decisions made by undertakings are not influenced by the tax implications of VAT, such that it is irrelevant, for tax purposes, that part of an undertaking’s activity is outsourced to a separate entity forming part of the group or carried out by an internal unit of an undertaking. (53) From that perspective, the tax advantages resulting from the participation of persons carrying out an exempt activity or not engaged in economic activity cannot be regarded as tax avoidance, since such advantages would likewise exist if those activities were carried out within a single undertaking. By contrast, the VAT group scheme would, in such circumstances, have the benefit of granting such advantages to the members of a group so as to ensure that organisational fiscal neutrality.

53.      However, it must be observed, first, that the Court of Justice has never followed that approach in its case-law concerning Article 11 of the VAT Directive. (54) Indeed, according to that case-law, organisational fiscal neutrality is not one of the objectives of the VAT group scheme. (55)

54.      Second, it should be observed that the effects of the application of that scheme must not be confused with its objectives. It is true that the scheme gives rise to the abovementioned tax advantages, in particular the fact that there is no difference, from a VAT perspective, between the performance of tasks within a company carrying out an exempt activity and those tasks being carried out by a subsidiary within the context of a VAT group. (56) However, it is not because those effects exist that they necessarily correspond to the purpose of the VAT group scheme. Equating the effects of the VAT group scheme with the purpose of that scheme would mean that a finding of tax avoidance could never be made, as any tax advantage resulting from its application would automatically be regarded as falling within the scope of the first paragraph of Article 11 of the VAT Directive. That would deprive of all meaning the authorisation given to Member States to counter tax avoidance, as provided for in the second paragraph of Article 11 of the VAT Directive.

55.      Third, I do not agree with the view taken by Advocate General Rantos (57) that the alleged objective of organisational fiscal neutrality of the VAT group scheme is justified in the light, inter alia, of the Commission proposal relating to Second Directive 67/228/EEC, (58) which preceded the Sixth Directive. According to Advocate General Rantos, the Commission sought to take inspiration, when introducing the first VAT group scheme in that directive, from the model in the German ‘Organschaft’ legislation, under which internal transactions were non-taxable in order to avoid the cumulation of taxes. I have doubts about that approach (59) and am rather of the view that the Commission, in the abovementioned proposal, started from the principle that the treatment of taxable persons in the form of a VAT group offers no tax advantage as compared with treatment as separate taxable persons. (60) Thus, for the Commission, the purpose of the VAT group was not to offset, by integration into a VAT group, any impossibility of deducting input tax with which separate taxable persons would be faced. There is therefore nothing to suggest that the Commission, via the proposed VAT group scheme, sought to introduce organisational fiscal neutrality by affording the VAT group tax advantages which would not have existed outside the group.

56.      Accordingly, since the second paragraph of Article 11 of the VAT Directive allows Member States to prevent any tax advantage not covered by the purpose of the VAT group scheme, (61) Member States may restrict the scope of that scheme by means of provisions of national law, in so far as those provisions are intended to prevent tax advantages arising from the application of the scheme other than those connected with simplifying administration.

 Proportionality

57.      If the referring court is able to establish, in accordance with the principles set out above, that the purpose of the derogatory rule of Danish law is to counter tax avoidance, it will then fall to it to determine, in addition, whether that derogation is compatible with the EU law principle of proportionality. (62) With that in mind, it is appropriate to set out for that court those factors which must be taken into consideration in order to determine whether that derogatory rule is appropriate and necessary to achieve that objective. (63)

58.      In that regard, first, it is appropriate to point out that the derogatory rule of Danish law appears to concern countering tax avoidance only in cases where persons carrying out an exempt activity or not engaged in economic activity are linked to another person in the group because the latter directly or indirectly holds less than 100% of their capital. By contrast, if such a stake encompasses all the capital of the other person, persons carrying out an exempt activity or not engaged in economic activity may join a VAT group, despite the tax advantages arising therefrom. Therefore, the objective of countering tax avoidance is achieved only partially by the derogatory rule of Danish law.

59.      However, a measure of national law may be regarded as appropriate for attaining the objective of countering tax avoidance even where the legislature provides only for the partial attainment of that objective, provided that the measure pursues the objective in a consistent and systematic manner. (64) It thus falls to the referring court to determine whether that is the case here.

60.      Second, it is for the referring court to examine whether the derogatory rule of Danish law does not go beyond what is necessary to prevent the creation of tax advantages other than those connected with simplifying administration. While the exclusion of persons carrying out only exempt or non-economic activities does seem necessary in order to combat tax avoidance, it is unclear that the same logic can be applied to persons carrying out such activities only partially. In that regard, it is difficult to say, in the light of the information before the Court, whether the Danish derogatory rule also applies where only some of the activities of a taxable person are exempt from VAT or non-economic in nature. If that were the case, the referring court would have to determine whether it is possible to adopt less restrictive measures to prevent the creation of tax advantages in the light of the exempt or non-economic activities of those taxable persons, whilst preserving, for their other activities, the advantage of simplifying administration that follows from the application of the VAT group scheme.

 Fiscal neutrality

61.      Lastly, it falls to the referring court to determine whether the derogatory rule of Danish law complies with the principle of fiscal neutrality, which must be observed according to the case-law of the Court of Justice in relation to measures to counter tax avoidance. (65) In that case-law, the Court of Justice invokes the principle of fiscal neutrality as a particular expression of the general principle of equal treatment, which precludes in particular treating economic operators carrying out the same transactions differently for VAT purposes. (66)

62.      In that regard, it should be stated that a rule such as the derogatory rule of Danish law identifies, within the group of persons engaged in exempt or non-economic activity and, therefore, potentially carrying out the same transactions, two sub-groups depending on the scale of the capital stake. Where a capital stake reaches 100%, the persons concerned are permitted to form a VAT group. However, for any stake below that threshold, such a VAT group cannot be formed.

63.      The travaux préparatoires for the Law on VAT cited by the referring court justify the distinction thus made by relying on the objective of ensuring equal treatment between the situation in which the undertaking organises its activities within a single legal entity and the situation in which those activities are divided between a number of companies within the same group. According to those travaux préparatoires, the latter situation requires a 100% stake so that a balance may be struck between, on the one hand, ‘the interests of the financial sector, which has requested that the current rules be adapted’ and, on the other hand, ‘the interests of competition, that is to say, the interests of the other undertakings that have to sell services under the normal VAT scheme’.

64.      In that context, it is for the referring court to identify the exact purpose of the derogatory rule of Danish law and to determine whether the manner in which that purpose is achieved by the Danish legislation is appropriate and necessary.

65.      The objective of equal treatment between undertakings organising their activities within a single legal entity and undertakings dividing them between a number of companies in the same group could, in principle, be duly relied upon to justify the derogatory Danish rule. After all, it is in line with ‘organisational’ fiscal neutrality. Although that objective is not one of those referred to by the VAT group scheme under Article 11 of the VAT Directive, (67) it does, however, represent an objective that may be pursued in the context of fiscal neutrality.

66.      However, its specific implementation in Danish law raises doubts vis-à-vis fiscal neutrality, in the light of the unconditional requirement of a 100% stake, to the exclusion of any participation of another amount. In that regard, the Danish Government argues, in its written observations, that a group composed of 100% affiliated companies may, in principle, choose to organise itself within the same legal entity. By contrast, that is not the case, according to that government, where one or more subsidiaries are partly owned by third parties outside the group, regardless of the extent of the third party’s stake.

67.      Accepting that the possibility of moving, autonomously and at will, from one form of organisation to another may constitute a legitimate ground for differentiation, it is thus for the referring court to determine whether the abovementioned claims are well founded, namely that the organisational integration of a subsidiary is a decision freely made by the parent company only where the subsidiary is 100% owned. It should be clarified that that question relates to the interpretation not of the VAT Directive, but rather of Danish company law. If such a choice for organisation within the same legal entity could also be made where the stakes held were of a lower percentage, as could be the case, for example, with companies listed on a regulated market, the different treatment arising from the Danish rule cannot be appropriate in the light of the objective pursued.

68.      There may be a particular need on the part of the financial sector, the ‘interests’ of which are relied upon by the Danish Government, relating to the requirement that economic operators in that sector organise themselves in the form of separate legal persons for regulatory reasons. (68) In that case, the 100% participation condition could justify, in that sector, different treatment compared with other levels of participation, since it could be accepted that the decision to organise into separate entities is based exclusively on regulatory requirements. However, that reasoning cannot justify the different treatment applied to those other sectors which, unlike the financial sector, are not subject to regulation of that kind, with the result that the derogatory rule would go beyond what is necessary to take account of the interests of the financial sector.

 Conclusion

69.      In the light of all the foregoing considerations, I propose that the General Court answer the first question referred by the Østre Landsret (High Court of Eastern Denmark, Denmark) for a preliminary ruling as follows:

Article 11 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax

must be interpreted as not precluding legislation of a Member State under which eligibility to form a VAT group comprising persons carrying out activities exempt from VAT or not engaged in economic activity, within the meaning of Article 9(1) of Directive 2006/112, is subject to one person in the VAT group owning, directly or indirectly, 100% of the other person or persons in the VAT group, in so far as that legislation is intended to prevent tax advantages arising from the application of the VAT group scheme other than those connected with simplifying administration, and complies with the principles of proportionality and fiscal neutrality.

Maja Brkan

Delivered in open court in Luxembourg on 22 April 2026.

[Signatures]

1      Original language: French.

2      Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1).

3      See, inter alia, judgments of 20 June 1991, Polysar Investments Netherlands, C‑60/90, EU:C:1991:268; of 25 April 2013, Commission v Sweden, C‑480/10, EU:C:2013:263; and of 11 July 2024, Finanzamt T II, C‑184/23, EU:C:2024:599.

4      Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes – Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1).

5      See point 1 of Article 1 of Council Directive 2006/69/EC of 24 July 2006 amending Directive 77/388/EEC as regards certain measures to simplify the procedure for charging value added tax and to assist in countering tax evasion or avoidance, and repealing certain Decisions granting derogations (OJ 2006 L 221, p. 9).

6      First sentence of Article 47(4) of the Law on VAT.

7      Second and third sentences of Article 47(4) of the Law on VAT.

8      Although the referring court has not explicitly stated that those services are provided for consideration, it is apparent from Sampension Livsforsikring’s observations at the hearing that that is the case.

9      In accordance with Article 168 of the VAT Directive, the right to deduct input VAT is dependent on the taxation of the output transactions.

10      See judgments of 22 May 2008, Ampliscientifica and Amplifin, C‑162/07, EU:C:2008:301, paragraph 19, and of 11 July 2024, Finanzamt T II, C‑184/23, EU:C:2024:599, paragraph 40.

11      See, inter alia, to that effect, judgment of 1 December 2022, Norddeutsche Gesellschaft für Diakonie, C‑141/20, EU:C:2022:943, paragraph 64, in relation to the second subparagraph of Article 4(4) of the Sixth Directive.

12      Judgments of 16 July 2015, Larentia + Minerva and Marenave Schiffahrt, C‑108/14 and C‑109/14, EU:C:2015:496, paragraph 42; of 1 December 2022, Norddeutsche Gesellschaft für Diakonie, C‑141/20, EU:C:2022:943, paragraphs 50 and 66; and of 1 December 2022, Finanzamt T (Internal supplies within a VAT group), C‑269/20, EU:C:2022:944, paragraphs 44 and 45.

13      Judgment of 15 April 2021, Finanzamt für Körperschaften Berlin, C‑868/19, not published, EU:C:2021:285, paragraph 44; see also, with regard to the second subparagraph of Article 4(4) of the Sixth Directive, judgment of 1 December 2022, Norddeutsche Gesellschaft für Diakonie, C‑141/20, EU:C:2022:943, paragraph 65.

14      Judgments of 25 April 2013, Commission v Sweden, C‑480/10, EU:C:2013:263, paragraph 36, and of 15 April 2021, Finanzamt für Körperschaften Berlin, C‑868/19, not published, EU:C:2021:285, paragraph 45.

15      See judgment of 1 December 2022, Norddeutsche Gesellschaft für Diakonie, C‑141/20, EU:C:2022:943, paragraph 71.

16      See also Communication from the Commission to the Council and the European Parliament of 2 July 2009 on the VAT group option provided for in Article 11 of Council Directive 2006/112/EC on the common system of value added tax, COM(2009) 325 final, paragraph 3.3.4.

17      See, to that effect, judgments of 15 April 2021, Finanzamt für Körperschaften Berlin, C‑868/19, not published, EU:C:2021:285, paragraph 58, and of 16 February 2023, DGRFP Cluj, C‑519/21, EU:C:2023:106, paragraph 86.

18      See judgments of 25 April 2013, Commission v Sweden, C‑480/10, EU:C:2013:263, paragraph 38, and of 25 April 2013, Commission v Finland, C‑74/11, not published, EU:C:2013:266, paragraph 66; in that regard, there is a difference as compared with the settled case-law concerning Article 131 of the VAT Directive, according to which the prevention of evasion, avoidance and abuse cannot concern the definition of the content of the exemptions (see judgment of 22 January 2026, Agrupació de Neteja Sanitària and Educat Serveis Auxiliars, C‑379/24 and C‑380/24, EU:C:2026:29, paragraph 33 and the case-law cited).

19      See footnote 17 to this Opinion.

20      See, inter alia, judgment of 15 April 2021, Finanzamt für Körperschaften Berlin, C‑868/19, not published, EU:C:2021:285, paragraph 61.

21      See, inter alia, judgments of 12 July 1988, Direct Cosmetics and Laughtons Photographs, 138/86 and 139/86, EU:C:1988:383, paragraphs 21 and 22, and of 14 December 2017, Avon Cosmetics, C‑305/16, EU:C:2017:970, paragraph 46.

22      See point (a) of the third subparagraph of Article 22(8), Article 23a(2) and (3) and Article 27(1), (2) and (5), first and second sentences, of Council Directive 92/83/EEC of 19 October 1992 on the harmonisation of the structures of excise duties on alcohol and alcoholic beverages (OJ 1992 L 316, p. 21), as amended; Article 5(2) of Council Directive 2003/49/EC of 3 June 2003 on a common system of taxation applicable to interest and royalty payments made between associated companies of different Member States (OJ 2003 L 157, p. 49); Article 14(1) and the first sentence of Article 20(2) of Council Directive 2003/96/EC of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity (OJ 2003 L 283, p. 51); Article 1(2) of Council Directive 2009/132/EC of 19 October 2009 determining the scope of Article 143(b) and (c) of Directive 2006/112/EC as regards exemption from value added tax on the final importation of certain goods (OJ 2009 L 292, p. 5); and Article 13(3) and the first subparagraph of Article 47(3) of Council Directive (EU) 2020/262 of 19 December 2019 laying down the general arrangements for excise duty (recast) (OJ 2020 L 58, p. 4), as amended.

23      See, to that effect, Commission Staff Working Document of 6 December 2012, Impact assessment accompanying the Communication from the Commission to the European Parliament and the Council – An Action Plan to strengthen the fight against tax fraud and tax evasion, SWD(2012) 403 final, Annex 14, p. 12.

24      See, inter alia, to that effect, judgment of 26 February 2013, Åkerberg Fransson, C‑617/10, EU:C:2013:105, paragraphs 26 and 27.

25      See also Article 1 of Directive (EU) 2017/1371 of the European Parliament and of the Council of 5 July 2017 on the fight against fraud to the Union’s financial interests by means of criminal law (OJ 2017 L 198, p. 29).

26      Judgment of 5 March 2015, Commission v Luxembourg, C‑502/13, EU:C:2015:143, paragraph 34 and the case-law cited.

27      See, for example, the Danish-language version (‘momsunddragelse’); the German-language version (‘Steuerumgehungen’); the Greek-language version (‘φοροαποφυγής’); the French-language version (‘évasion fiscale’); the Croatian-language version (‘izbjegavanja poreza’); the Dutch-language version (‘belastingontwijking’); and the Slovenian-language version (‘izogibanja plačilu davka’).

28      Proposal for a Council Directive of 16 March 2005 amending Directive 77/388/EEC as regards certain measures to simplify the procedure for charging value added tax and to assist in countering tax evasion and avoidance, and repealing certain Decisions granting derogations, COM(2005) 89 final, pp. 5 and 16 (point 1 of Article 1).

29      Ibid., p. 5.

30      European Parliament, Report of 9 June 2006 on the proposal for a Council directive amending Directive 77/388/EEC as regards certain measures to simplify the procedure for charging value added tax and to assist in countering tax evasion and avoidance, and repealing certain Decisions granting derogations, A6-0209/2006.

31      European Economic and Social Committee, Opinion of 15 December 2005 on the ‘Proposal for a Council Directive amending Directive 77/388/EEC as regards certain measures to simplify the procedure for charging value added tax and to assist in countering tax evasion and avoidance, and repealing certain Decisions granting derogations’, ECO/158 – EESC 1501/2005.

32      Second sentence of the second paragraph of Article 19, first subparagraph of Article 80(1), Article 131, first sentence of Article 143(1)(1a), Article 158(2), second subparagraph of Article 284(5), second sentence of the second paragraph of Article 292b, and Article 394 of the VAT Directive; in addition, Article 395(1) of the VAT Directive affords the Council the possibility of approving such measures.

33      Point (a) of the third subparagraph of Article 22(8), Article 23a(2) and (3) and Article 27(1), (2) and (5), first and second sentences, of Directive 92/83; Article 5(2) of Directive 2003/49; Article 14(1) and the first sentence of Article 20(2) of Directive 2003/96; Article 1(2) of Directive 2009/132; Article 15(1)(a) of Council Directive 2009/133/EC of 19 October 2009 on the common system of taxation applicable to mergers, divisions, partial divisions, transfers of assets and exchanges of shares concerning companies of different Member States and to the transfer of the registered office of an SE or SCE between Member States (OJ 2009 L 310, p. 34); and Article 13(3) and the first subparagraph of Article 47(3) of Directive 2020/262, as amended.

34      As a reminder, Article 27(1) of the Sixth Directive allowed the Council to authorise a Member State to introduce special measures for derogation from the provisions of the Sixth Directive, in order to simplify the procedure for charging the tax or to prevent certain types of tax evasion or avoidance.

35      Judgments of 12 July 1988, Direct Cosmetics and Laughtons Photographs, 138/86 and 139/86, EU:C:1988:383, and of 14 December 2017, Avon Cosmetics, C‑305/16, EU:C:2017:970.

36      Judgment of 12 July 1988, Direct Cosmetics and Laughtons Photographs, 138/86 and 139/86, EU:C:1988:383, paragraphs 21 and 22.

37      See judgment of 14 December 2017, Avon Cosmetics, C‑305/16, EU:C:2017:970, paragraph 46.

38      Judgments of 25 April 2013, Commission v Sweden, C‑480/10, EU:C:2013:263, paragraphs 38 to 40, and of 25 April 2013, Commission v Finland, C‑74/11, not published, EU:C:2013:266.

39      See, to that effect, judgments of 25 April 2013, Commission v Sweden, C‑480/10, EU:C:2013:263, paragraphs 38 to 40, and of 25 April 2013, Commission v Finland, C‑74/11, not published, EU:C:2013:266, paragraphs 66 to 68.

40      By way of example, the Commission defined the equivalent English term ‘tax avoidance’ on the basis of the Organisation for Economic Co-operation and Development (OECD) definition in force at the time, which read as follows: ‘a term that is difficult to define but which is generally used to describe the arrangement of a taxpayer’s affairs that is intended to reduce his tax liability and that although the arrangement could be strictly legal it is usually in contradiction with the intent of the law it purports to follow’ (Commission Staff Working Document of 6 December 2012, SWD(2012) 403 final, Annex 14, p. 11); see also Kuźniacki, B., ‘Tax Avoidance through Controlled Foreign Companies under European Union Law with Specific Reference to Poland’, Journal of Accounting, Economics, and Law: A Convivium, 2017, paragraph 2.4, and the references cited therein.

41      See footnote 40 to this Opinion.

42      See, inter alia, to that effect, judgment of 21 February 2006, Halifax and Others, C‑255/02, EU:C:2006:121, paragraph 74, in the field of VAT, and judgment of 26 February 2019, T Danmark and Y Denmark, C‑116/16 and C‑117/16, EU:C:2019:135, paragraph 97 and the case-law cited, in the field of income tax.

43      See footnote 42 to this Opinion.

44      Council Directive (EU) 2016/1164 of 12 July 2016 laying down rules against tax avoidance practices that directly affect the functioning of the internal market (OJ 2016 L 193, p. 1).

45      See Article 4 et seq. of Chapter II of Directive 2016/1164.

46      Article 6 of Directive 2016/1164.

47      Judgments of 15 April 2021, Finanzamt für Körperschaften Berlin, C‑868/19, not published, EU:C:2021:285, paragraph 35 and the case-law cited, and of 16 February 2023, DGRFP Cluj, C‑519/21, EU:C:2023:106, paragraph 80; the splitting-up of one undertaking among several taxable persons may be advantageous, since the advantages of certain special schemes are subject to turnover caps, such as the special scheme for small enterprises under Article 284 of the VAT Directive.

48      See judgments of 25 April 2013, Commission v Sweden, C‑480/10, EU:C:2013:263, paragraph 37; of 5 March 2015, Commission v Luxembourg, C‑502/13, EU:C:2015:143, paragraph 47; of 16 July 2015, Larentia + Minerva and Marenave Schiffahrt, C‑108/14 and C‑109/14, EU:C:2015:496, paragraph 40; of 1 December 2022, Norddeutsche Gesellschaft für Diakonie, C‑141/20, EU:C:2022:943, paragraph 49; and of 1 December 2022, Finanzamt T (Internal supplies within a VAT group), C‑269/20, EU:C:2022:944, paragraph 43.

49      See points 16 and 17 of this Opinion for a description of the origin of such tax advantages, in the light of the example based on the present case.

50      See also, to that effect, VAT Committee, Guidelines resulting from the 101st meeting of 20 October 2014, Document C, taxud.c.1(2015)46844 – 824.

51      See, to that effect, with regard to a non-taxable holding company, judgment of 16 July 2015, Larentia + Minerva and Marenave Schiffahrt, C‑108/14 and C‑109/14, EU:C:2015:496, paragraph 35, and Opinion of Advocate General Jääskinen in Commission v Ireland, C‑85/11, EU:C:2012:753, point 51.

52      Opinion of Advocate General Rantos in Finanzamt T II, C‑184/23, EU:C:2024:416, points 81 to 83; see also, to that effect, Opinion of Advocate General Jääskinen in Commission v Ireland, C‑85/11, EU:C:2012:753, point 49, and Opinion of Advocate General Kokott in Adient, C‑533/22, EU:C:2024:106, point 33.

53      See footnote 52 to this Opinion.

54      See, inter alia, judgments of 9 April 2013, Commission v Ireland, C‑85/11, EU:C:2013:217, and of 11 July 2024, Finanzamt T II, C‑184/23, EU:C:2024:599.

55      See point 49 of this Opinion.

56      It appears that the Court of Justice, in its judgment of 11 July 2024, Finanzamt T II, C‑184/23, EU:C:2024:599, paragraphs 43 to 46, also wished to draw attention to those effects of the VAT group scheme. Even though the Court of Justice seems to take the view that those effects do not entail a ‘risk of tax losses’ within the meaning of its case-law, it has not ruled on whether they may constitute tax avoidance, within the meaning of the second paragraph of Article 11 of the VAT Directive; this can be explained inter alia by the fact that that case concerned a period during which that provision was not yet applicable.

57      Opinion of Advocate General Rantos in Finanzamt T II, C‑184/23, EU:C:2024:416, point 84.

58      Second Council Directive 67/228/EEC of 11 April 1967 on the harmonisation of legislation of Member States concerning turnover taxes – Structure and procedures for application of the common system of value added tax (OJ, English Special Edition: Series I Volume 1967, p. 16).

59      Those doubts are based inter alia on the following considerations: the ‘Organschaft’ model was introduced in German law in 1934 in the context of the system of turnover tax, in force at that time, which did not provide for the deduction of input tax (see Stadie, H., Rau/Dürrwächter Kommentar zum Umsatzsteuergesetz, § 2 UStG, paragraph 780). That system therefore resulted from the cumulation of taxes in the transaction chain which is no longer possible in the current system of value added tax (see Article 1(2) of the VAT Directive). Thus, that objective of the ‘Organschaft’ legislation in force at the time has become obsolete in the current system.

60      Proposal of 13 April 1965 for a second [Council] Directive for the harmonisation among Member States of turnover tax legislation, concerning the form and methods of application of the common system of taxation on value added, IV/COM(65) 144 final, p. 7, last paragraph.

61      See point 47 of this Opinion.

62      See, to that effect, judgments of 15 April 2021, Finanzamt für Körperschaften Berlin, C‑868/19, not published, EU:C:2021:285, paragraph 57, and of 16 February 2023, DGRFP Cluj, C‑519/21, EU:C:2023:106, paragraph 85.

63      See, to that effect, judgments of 15 April 2021, Finanzamt für Körperschaften Berlin, C‑868/19, not published, EU:C:2021:285, paragraph 58, and of 16 February 2023, DGRFP Cluj, C‑519/21, EU:C:2023:106, paragraph 86.

64      See, by analogy, judgment of 18 December 2025, Slagelse Almennyttige Boligselskab, Afdeling Schackenborgvænge, C‑417/23, EU:C:2025:1017, paragraphs 161 to 163 and the case-law cited.

65      Judgments of 15 April 2021, Finanzamt für Körperschaften Berlin, C‑868/19, not published, EU:C:2021:285, paragraph 57, and of 16 February 2023, DGRFP Cluj, C‑519/21, EU:C:2023:106, paragraph 85.

66      See judgment of 16 February 2023, DGRFP Cluj, C‑519/21, EU:C:2023:106, paragraph 88; see also, to that effect, judgment of 15 April 2021, Finanzamt für Körperschaften Berlin, C‑868/19, not published, EU:C:2021:285, paragraph 65.

67      See point 52 et seq. of this Opinion.

68      See, with regard to the situation in Sweden, Opinion of Advocate General Jääskinen in Commission v Sweden, C‑480/10, EU:C:2012:751, point 49.