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

Having regard to the Treaty establishing the European Community, and in particular Article 94 thereof,

For the purposes of this Directive, ‘company from a Member State’ shall mean any company which:

RULES APPLICABLE TO MERGERS, DIVISIONS, PARTIAL DIVISIONS, TO TRANSFERS OF ASSETS AND EXCHANGES OF SHARES

1. A merger, division or partial division shall not give rise to any taxation of capital gains calculated by reference to the difference between the real values of the assets and liabilities transferred and their values for tax purposes.

(a) ‘value for tax purposes’: the value on the basis of which any gain or loss would have been computed for the purposes of tax upon the income, profits or capital gains of the transferring company if such assets or liabilities had been sold at the time of the merger, division or partial division but independently of it;

(b) ‘transferred assets and liabilities’: those assets and liabilities of the transferring company which, in consequence of the merger, division or partial division, are effectively connected with a permanent establishment of the receiving company in the Member State of the transferring company and play a part in generating the profits or losses taken into account for tax purposes.

3. Where paragraph 1 applies and where a Member State considers a non-resident transferring company as fiscally transparent on the basis of that Member State’s assessment of the legal characteristics of that company arising from the law under which it is constituted and therefore taxes the shareholders on their share of the profits of the transferring company as and when those profits arise, that Member State shall not tax any income, profits or capital gains calculated by reference to the difference between the real values of the assets and liabilities transferred and their values for tax purposes.

4. Paragraphs 1 and 3 shall apply only if the receiving company computes any new depreciation and any gains or losses in respect of the assets and liabilities transferred according to the rules that would have applied to the transferring company or companies if the merger, division or partial division had not taken place.

5. Where, under the laws of the Member State of the transferring company, the receiving company is entitled to have any new depreciation or any gains or losses in respect of the assets and liabilities transferred computed on a basis different from that set out in paragraph 4, paragraph 1 shall not apply to the assets and liabilities in respect of which that option is exercised.

The Member States shall take the necessary measures to ensure that, where provisions or reserves properly constituted by the transferring company are partly or wholly exempt from tax and are not derived from permanent establishments abroad, such provisions or reserves may be carried over, with the same tax exemption, by the permanent establishments of the receiving company which are situated in the Member State of the transferring company, the receiving company thereby assuming the rights and obligations of the transferring company.

To the extent that, if the operations referred to in Article 1(a) were effected between companies from the Member State of the transferring company, the Member State would apply provisions allowing the receiving company to takeover the losses of the transferring company which had not yet been exhausted for tax purposes, it shall extend those provisions to cover the takeover of such losses by the receiving company’s permanent establishments situated within its territory.

1. Where the receiving company has a holding in the capital of the transferring company, any gains accruing to the receiving company on the cancellation of its holding shall not be liable to any taxation.

2. The Member States may derogate from paragraph 1 where the receiving company has a holding of less than 15 % in the capital of the transferring company.

1. On a merger, division or exchange of shares, the allotment of securities representing the capital of the receiving or acquiring company to a shareholder of the transferring or acquired company in exchange for securities representing the capital of the latter company shall not, of itself, give rise to any taxation of the income, profits or capital gains of that shareholder.

2. On a partial division, the allotment to a shareholder of the transferring company of securities representing the capital of the receiving company shall not, of itself, give rise to any taxation of the income, profits or capital gains of that shareholder.

3. Where a Member State considers a shareholder as fiscally transparent on the basis of that Member State’s assessment of the legal characteristics of that shareholder arising from the law under which it is constituted and therefore taxes those persons having an interest in the shareholder on their share of the profits of the shareholder as and when those profits arise, that Member State shall not tax those persons on income, profits or capital gains from the allotment of securities representing the capital of the receiving or acquiring company to the shareholder.

4. Paragraphs 1 and 3 shall apply only if the shareholder does not attribute to the securities received a value for tax purposes higher than the value the securities exchanged had immediately before the merger, division or exchange of shares.

5. Paragraphs 2 and 3 shall apply only if the shareholder does not attribute to the sum of the securities received and those held in the transferring company, a value for tax purposes higher than the value the securities held in the transferring company had immediately before the partial division.

6. The application of paragraphs 1, 2 and 3 shall not prevent the Member States from taxing the gain arising out of the subsequent transfer of securities received in the same way as the gain arising out of the transfer of securities existing before the acquisition.

7. For the purpose of this Article, ‘value for tax purposes’ shall mean the value on the basis of which any gain or loss would be computed for the purposes of tax upon the income, profits or capital gains of a shareholder of the company.

8. Where, under the law of the Member State in which he is resident, a shareholder may opt for tax treatment different from that set out in paragraphs 4 and 5, paragraphs 1, 2 and 3 shall not apply to the securities in respect of which such an option is exercised.

9. Paragraphs 1, 2 and 3 shall not prevent a Member State from taking into account when taxing shareholders any cash payment that may be made on the merger, division, partial division or exchange of shares.

1. Where the assets transferred in a merger, a division, a partial division or a transfer of assets include a permanent establishment of the transferring company which is situated in a Member State other than that of the transferring company, the Member State of the transferring company shall renounce any right to tax that permanent establishment.

The Member State of the transferring company may reinstate in the taxable profits of that company such losses of the permanent establishment as may previously have been set off against the taxable profits of the company in that Member State and which have not been recovered.

The Member State in which the permanent establishment is situated and the Member State of the receiving company shall apply the provisions of this Directive to such a transfer as if the Member State where the permanent establishment is situated were the Member State of the transferring company.

This paragraph shall also apply in the case where the permanent establishment is situated in the same Member State as that in which the receiving company is resident.

2. By way of derogation from paragraph 1, where the Member State of the transferring company applies a system of taxing worldwide profits, that Member State shall have the right to tax any profits or capital gains of the permanent establishment resulting from the merger, division, partial division or transfer of assets, on condition that it gives relief for the tax that, but for the provisions of this Directive, would have been charged on those profits or capital gains in the Member State in which that permanent establishment is situated, in the same way and in the same amount as it would have done if that tax had actually been charged and paid.

1. Where a Member State considers a non-resident transferring or acquired company to be fiscally transparent on the basis of that Member State’s assessment of the legal characteristics of that company arising from the law under which it is constituted, it shall have the right not to apply the provisions of this Directive when taxing a direct or indirect shareholder of that company in respect of the income, profits or capital gains of that company.

2. A Member State exercising the right referred to in paragraph 1 shall give relief for the tax which, but for the provisions of this Directive, would have been charged on the fiscally transparent company on its income, profits or capital gains, in the same way and in the same amount as that Member State would have done if that tax had actually been charged and paid.

3. Where a Member State considers a non-resident receiving or acquiring company to be fiscally transparent on the basis of that Member State’s assessment of the legal characteristics of that company arising from the law under which it is constituted, it shall have the right not to apply Article 8(1), (2) and (3).

4. Where a Member State considers a non-resident receiving company to be fiscally transparent on the basis of that Member State’s assessment of the legal characteristics of that company arising from the law under which it is constituted, that Member State may apply to any direct or indirect shareholders the same treatment for tax purposes as it would if the receiving company were resident in that Member State.

that transfer of registered office or the cessation of residence shall not give rise to any taxation of capital gains, calculated in accordance with Article 4(1), in the Member State from which the registered office has been transferred, derived from those assets and liabilities of the SE or SCE which, in consequence, remain effectively connected with a permanent establishment of the SE or of the SCE in the Member State from which the registered office has been transferred and play a part in generating the profits or losses taken into account for tax purposes.

2. Paragraph 1 shall apply only if the SE or the SCE computes any new depreciation and any gains or losses in respect of the assets and liabilities that remain effectively connected with that permanent establishment, as though the transfer of the registered office had not taken place or the SE or the SCE had not so ceased to be tax resident.

3. Where, under the laws of the Member State from which the registered office was transferred, the SE or the SCE is entitled to have any new depreciation or any gains or losses in respect of the assets and liabilities remaining in that Member State computed on a basis different from that set out in paragraph 2, paragraph 1 shall not apply to the assets and liabilities in respect of which that option is exercised.

the Member States shall take the necessary measures to ensure that, where provisions or reserves properly constituted by the SE or the SCE before the transfer of the registered office are partly or wholly exempt from tax and are not derived from permanent establishments abroad, such provisions or reserves may be carried over, with the same tax exemption, by a permanent establishment of the SE or the SCE which is situated within the territory of the Member State from which the registered office was transferred.

2. To the extent that a company transferring its registered office within the territory of a Member State would be allowed to carry forward or carry back losses which had not been exhausted for tax purposes, that Member State shall allow the permanent establishment, situated within its territory, of the SE or of the SCE transferring its registered office, to take over those losses of the SE or SCE which have not been exhausted for tax purposes, provided that the loss carry forward or carry back would have been available in comparable circumstances to a company which continued to have its registered office or which continued to be tax resident in that Member State.

1. The transfer of the registered office of an SE or of an SCE shall not, of itself, give rise to any taxation of the income, profits or capital gains of the shareholders.

2. The application of paragraph 1 shall not prevent the Member States from taxing the gain arising out of the subsequent transfer of the securities representing the capital of the SE or of the SCE that transfers its registered office.

1. A Member State may refuse to apply or withdraw the benefit of all or any part of the provisions of Articles 4 to 14 where it appears that one of the operations referred to in Article 1:

2. Paragraph 1(b) shall apply as long as and to the extent that no Community law provisions containing equivalent rules on representation of employees on company organs are applicable to the companies covered by this Directive.

Member States shall communicate to the Commission the texts of the main provisions of national law which they adopt in the field covered by this Directive.

Directive 90/434/EEC, as amended by the acts listed in Annex II, Part A, is repealed, without prejudice to the obligations of the Member States relating to the time-limits for transposition into national law and application of the Directives set out in Annex II, Part B.

References to the repealed Directive shall be construed as references to this Directive and shall be read in accordance with the correlation table in Annex III.

This Directive shall enter into force on the 20th day following its publication in the Official Journal of the European Union.

ANNEX I

PART A

LIST OF COMPANIES REFERRED TO IN ARTICLE 3(a)

(a)

companies (SE) incorporated under Regulation (EC) No 2157/2001 and Council Directive 2001/86/EC of 8 October 2001 supplementing the Statute for a European company with regard to the involvement of employees (1) and cooperative societies (SCE) incorporated under Regulation (EC) No 1435/2003 and Council Directive 2003/72/EC of 22 July 2003 supplementing the Statute for a European Cooperative Society with regard to the involvement of employees (2);

(b)

companies under Belgian law known as ‘société anonyme’/‘naamloze vennootschap’, ‘société en commandite par actions’/‘commanditaire vennootschap op aandelen’, ‘société privée à responsabilité limitée’/‘besloten vennootschap met beperkte aansprakelijkheid’‘société coopérative à responsabilité limitée’/‘coöperatieve vennootschap met beperkte aansprakelijkheid’, ‘société coopérative à responsabilité illimitée’/‘coöperatieve vennootschap met onbeperkte aansprakelijkheid’, ‘société en nom collectif’/‘vennootschap onder firma’, ‘société en commandite simple’/‘gewone commanditaire vennootschap’, public undertakings which have adopted one of the abovementioned legal forms, and other companies constituted under Belgian law subject to the Belgian corporate tax;

(c)

companies under Bulgarian law known as ‘събирателното дружество’, ‘командитното дружество’, ‘дружеството с ограничена отговорност’, ‘акционерното дружество’, ‘командитното дружество с акции’, ‘кооперации’, ‘кооперативни съюзи’, and ‘държавни предприятия’ constituted under Bulgarian law and carrying on commercial activities;

(d)	companies under Czech law known as ‘akciová společnost’ and ‘společnost s ručením omezeným’;

(e)	companies under Danish law known as ‘aktieselskab’ and ‘anpartsselskab’ and other companies subject to tax under the Corporation Tax Act, in so far as their taxable income is calculated and taxed in accordance with the general tax legislation rules applicable to ‘aktieselskaber’;

(f)

companies under German law known as ‘Aktiengesellschaft’, ‘Kommanditgesellschaft auf Aktien’, ‘Gesellschaft mit beschränkter Haftung’, ‘Versicherungsverein auf Gegenseitigkeit’, ‘Erwerbs- und Wirtschaftsgenossenschaft’, ‘Betriebe gewerblicher Art von juristischen Personen des öffentlichen Rechts’, and other companies constituted under German law subject to German corporate tax;

(g)	companies under Estonian law known as ‘täisühing’, ‘usaldusühing’, ‘osaühing’, ‘aktsiaselts’ and ‘tulundusühistu’;

(h)	companies incorporated or existing under Irish law, bodies registered under the Industrial and Provident Societies Act, building societies incorporated under the Building Societies Acts and trustee savings banks within the meaning of the Trustee Savings Banks Act, 1989;

(i)	companies under Greek law known as ‘ανώνυμη εταιρεία’ and ‘εταιρεία περιορισμένης ευθύνης (Ε.Π.Ε.)’;

(j)	companies under Spanish law known as ‘sociedad anónima’, ‘sociedad comanditaria por acciones’, ‘sociedad de responsabilidad limitada’, and those public law bodies which operate under private law;

(k)

companies under French law known as ‘société anonyme’, ‘société en commandite par actions’, ‘société à responsabilité limitée’, ‘sociétés par actions simplifiées’, ‘sociétés d’assurances mutuelles’, ‘caisses d’épargne et de prévoyance’, ‘sociétés civiles’ which are automatically subject to corporation tax, ‘coopératives’, ‘unions de coopératives’, industrial and commercial public establishments and undertakings, and other companies constituted under French law subject to the French corporate tax;

(l)	companies under Italian law known as ‘società per azioni’, ‘società in accomandita per azioni’, ‘società a responsabilità limitata’, ‘società cooperative’, ‘società di mutua assicurazione’, and private and public entities whose activity is wholly or principally commercial;

(m)	companies (εταιρείες) under Cypriot law as defined in the income tax laws;

(n)	companies under Latvian law known as ‘akciju sabiedrība’ and ‘sabiedrība ar ierobežotu atbildību’;

(o)	companies incorporated under the law of Lithuania;

(p)

companies under Luxembourg law known as ‘société anonyme’, ‘société en commandite par actions’, ‘société à responsabilité limitée’, ‘société coopérative’, ‘société coopérative organisée comme une société anonyme’, ‘association d’assurances mutuelles’, ‘association d’épargne-pension’, ‘entreprise de nature commerciale, industrielle ou minière de l’État, des communes, des syndicats de communes, des établissements publics et des autres personnes morales de droit public’, and other companies constituted under Luxembourg law subject to the Luxembourg corporate tax;

(q)	companies under Hungarian law known as ‘közkereseti társaság’, ‘betéti társaság’, ‘közös vállalat’, ‘korlátolt felelősségű társaság’, ‘részvénytársaság’, ‘egyesülés’, ‘közhasznú társaság’ and ‘szövetkezet’;

(r)	companies under Maltese law known as ‘Kumpaniji ta’ Responsabilita Limitata’ and ‘Soċjetajiet en commandite li l-kapital tagħhom maqsum f’azzjonijiet’;

(s)

companies under Dutch law known as ‘naamloze vennootschap’, ‘besloten vennootschap met beperkte aansprakelijkheid’, ‘open commanditaire vennootschap’, ‘coöperatie’, ‘onderlinge waarborgmaatschappij’, ‘fonds voor gemene rekening’, ‘vereniging op coöperatieve grondslag’ and ‘vereniging welke op onderlinge grondslag als verzekeraar of kredietinstelling optreedt’, and other companies constituted under Dutch law subject to the Dutch corporate tax;

(t)	companies under Austrian law known as ‘Aktiengesellschaft’, ‘Gesellschaft mit beschränkter Haftung’, and ‘Erwerbs- und Wirtschaftsgenossenschaften’;

(u)	companies under Polish law known as ‘spółka akcyjna’ and ‘spółka z ograniczoną odpowiedzialnością’;

(v)	commercial companies or civil law companies having a commercial form as well as other legal persons carrying on commercial or industrial activities, which are incorporated under Portuguese law;

(w)	companies under Romanian law known as ‘societăți pe acțiuni’, ‘societăți în comandită pe acțiuni’ and ‘societăți cu răspundere limitată’;

(x)	companies under Slovenian law known as ‘delniška družba’, ‘komanditna družba’ and ‘družba z omejeno odgovornostjo’;

(y)	companies under Slovak law known as ‘akciová spoločnosť’, ‘spoločnosť s ručením obmedzeným’ and ‘komanditná spoločnosť’;

(z)	companies under Finnish law known as ‘osakeyhtiö’/‘aktiebolag’, ‘osuuskunta’/‘andelslag’, ‘säästöpankki’/‘sparbank’ and ‘vakuutusyhtiö’/‘försäkringsbolag’;

(aa)	companies under Swedish law known as ‘aktiebolag’, ‘bankaktiebolag’, ‘försäkringsaktiebolag’, ‘ekonomiska föreningar’, ‘sparbanker’ and ‘ömsesidiga försäkringsbolag’;

(ab)	companies incorporated under the law of the United Kingdom.

PART B

LIST OF TAXES REFERRED TO IN ARTICLE 3(C)

—	impôt des sociétés/vennootschapsbelasting in Belgium,

—	корпоративен данък in Bulgaria,

—	daň z příjmů právnických osob in the Czech Republic,

—	selskabsskat in Denmark,

—	Körperschaftssteuer in Germany,

—	tulumaks in Estonia,

—	corporation tax in Ireland,

—	φόρος εισοδήματος νομικών προσώπων κερδοσκοπικού χαρακτήρα in Greece,

—	impuesto sobre sociedades in Spain,

—	impôt sur les sociétés in France,

—	imposta sul reddito delle società in Italy,

—	φόρος εισοδήματος in Cyprus,

—	uzņēmumu ienākuma nodoklis in Latvia,

—	pelno mokestis in Lithuania,

—	impôt sur le revenu des collectivités in Luxembourg,

—	társasági adó in Hungary,

—	taxxa fuq l-income in Malta,

—	vennootschapsbelasting in the Netherlands,

—	Körperschaftssteuer in Austria,

—	podatek dochodowy od osób prawnych in Poland,

—	imposto sobre o rendimento das pessoas colectivas in Portugal,

—	impozit pe profit in Romania,

—	davek od dobička pravnih oseb in Slovenia,

—	daň z príjmov právnických osôb in Slovakia,

—	yhteisöjen tulovero/inkomstskatten för samfund in Finland,

—	statlig inkomstskatt in Sweden,

—	corporation tax in the United Kingdom.

(1) OJ L 294, 10.11.2001, p. 22.

(2) OJ L 207, 18.8.2003, p. 25.

ANNEX III

Correlation Table

Directive 90/434/EEC	This Directive
Article 1	Article 1
Article 2(a) first indent	Article 2(a)(i)
Article 2(a) second indent	Article 2(a)(ii)
Article 2(a) third indent	Article 2(a)(iii)
Article 2(b)	Article 2(b)
Article 2(b)(a)	Article 2(c)
Article 2(c)	Article 2(d)
Article 2(d)	Article 2(e)
Article 2(e)	Article 2(f)
Article 2(f)	Article 2(g)
Article 2(g)	Article 2(h)
Article 2(h)	Article 2(i)
Article 2(i)	Article 2(j)
Article 2(j)	Article 2(k)
Article 3(a)	Article 3(a)
Article 3(b)	Article 3(b)
Article 3(c), introductory phrase of the first subparagraph and second subparagraph	Article 3(c)
Article 3(c), first subparagraph, first to twenty-seventh indents	Annex I, Part B
Article 4(1) first subparagraph	Article 4(1)
Article 4(1) second subparagraph	Article 4(2)
Article 4(2)	Article 4(3)
Article 4(3)	Article 4(4)
Article 4(4)	Article 4(5)
Articles 5 and 6	Articles 5 and 6
Article 7(1)	Article 7(1)
Article 7(2), first subparagraph	Article 7(2), first subparagraph
Article 7(2), second subparagraph, first sentence	—
Article 7(2), second subparagraph, second sentence	Article 7(2), second subparagraph
Articles 8, 9 and 10	Articles 8, 9 and 10
Article 10a	Article 11
Article 10b	Article 12
Article 10c	Article 13
Article 10d	Article 14
Article 11	Article 15
Article 12(1)	—
Article 12(2)	—
Article 12(3)	Article 16
—	Article 17
—	Article 18
Article 13	Article 19
Annex	Annex I, Part A
—	Annex II
—	Annex III

Council Directive 90/434/EEC (OJ L 225, 20.8.1990, p. 1).
Point XI(B)(I)(2) of Annex I to the 1994 Act of Accession (OJ C 241, 29.8.1994, p. 196)
Point 9.7 of Annex II to the 2003 Act of Accession (OJ L 236, 23.9.2003, p. 559).
Council Directive 2005/19/EC (OJ L 58, 4.3.2005, p. 19).
Council Directive 2006/98/EC (OJ L 363, 20.12.2006, p. 129).	only point 6 of the Annex

Directive	Time-limit for transposition	Date of application
90/434/EEC	1 January 1992	1 January 1993 (1)
2005/19/EC	1 January 2006 (2) 1 January 2007 (3)	—
2006/98/EC	1 January 2007	—