Case C-371/11

Punch Graphix Prepress Belgium NV

v

Belgische Staat

(Reference for a preliminary ruling from the hof van beroep te Gent)

‛Reference for a preliminary ruling — Admissibility — Reference by domestic law to European Union law — Directive 90/435/EEC — Directive 90/434/EEC — Prevention of economic double taxation — Exception — Liquidation of a subsidiary upon a merger — Distribution of profits — Concept of ‘liquidation’’

Summary – Judgment of the Court (Seventh Chamber), 18 October 2012

1. Questions referred for a preliminary ruling — Jurisdiction of the Court — Limits — Interpretation sought due to application to purely internal situations of provisions of a directive transposed into national law — Assessment of the precise scope of the reference to European Union law by national law — Exclusive jurisdiction of the national courts

   (Art. 267 TFEU)

2. Approximation of laws — Common system of taxation applicable in the case of parent companies and subsidiaries of different Member States — Directive 90/435 — Prevention of economic double taxation — Exemption, with regard to the parent company, of dividends received — Exception relating to distributed profits when the subsidiary is liquidated — Concept of liquidation — Dissolution of a company in the context of a merger by acquisition — Not included

   (Council Directives 90/434, Art. 2(a), third indent, and 90/435, Art. 4(1), as amended by Council Directive 2006/98)

1.  See the text of the decision.

   (see paras 26-28)

2.  The concept of ‘liquidation’ in Article 4(1) of Directive 90/435 on the common system of taxation applicable in the case of parent companies and subsidiaries of different Member States, as amended by Directive 2006/98, must be interpreted as meaning that the dissolution of a company in the context of a merger by acquisition cannot be considered to be such a liquidation.

   It is true that Directive 90/435 does not define the concept of liquidation. However, the third indent of Article 2(a) of Directive 90/434 on the common system of taxation applicable to mergers, divisions, transfers of assets and exchanges of shares concerning companies of different Member States, as amended by Directive 2006/98, defines a ‘merger’ as being an operation whereby a company, on being dissolved without going into liquidation, transfers all its assets and liabilities to the company holding all the securities representing its capital. Directives 90/434 and 90/435 complement each other and that definition of the concept of ‘merger’ is also relevant for the interpretation of the concept of ‘liquidation’ within the meaning of Article 4(1) of Directive 90/435, so that that dissolution of a company cannot be considered to be a ‘liquidation’ within the meaning of that latter provision.

   (see paras 32, 33, 35-37, operative part)

Case C-371/11

Punch Graphix Prepress Belgium NV

v

Belgische Staat

(Reference for a preliminary ruling from the hof van beroep te Gent)

‛Reference for a preliminary ruling — Admissibility — Reference by domestic law to European Union law — Directive 90/435/EEC — Directive 90/434/EEC — Prevention of economic double taxation — Exception — Liquidation of a subsidiary upon a merger — Distribution of profits — Concept of ‘liquidation’’

Summary – Judgment of the Court (Seventh Chamber), 18 October 2012

1. Questions referred for a preliminary ruling — Jurisdiction of the Court — Limits — Interpretation sought due to application to purely internal situations of provisions of a directive transposed into national law — Assessment of the precise scope of the reference to European Union law by national law — Exclusive jurisdiction of the national courts

   (Art. 267 TFEU)

2. Approximation of laws — Common system of taxation applicable in the case of parent companies and subsidiaries of different Member States — Directive 90/435 — Prevention of economic double taxation — Exemption, with regard to the parent company, of dividends received — Exception relating to distributed profits when the subsidiary is liquidated — Concept of liquidation — Dissolution of a company in the context of a merger by acquisition — Not included

   (Council Directives 90/434, Art. 2(a), third indent, and 90/435, Art. 4(1), as amended by Council Directive 2006/98)

1.  See the text of the decision.

   (see paras 26-28)

2.  The concept of ‘liquidation’ in Article 4(1) of Directive 90/435 on the common system of taxation applicable in the case of parent companies and subsidiaries of different Member States, as amended by Directive 2006/98, must be interpreted as meaning that the dissolution of a company in the context of a merger by acquisition cannot be considered to be such a liquidation.

   It is true that Directive 90/435 does not define the concept of liquidation. However, the third indent of Article 2(a) of Directive 90/434 on the common system of taxation applicable to mergers, divisions, transfers of assets and exchanges of shares concerning companies of different Member States, as amended by Directive 2006/98, defines a ‘merger’ as being an operation whereby a company, on being dissolved without going into liquidation, transfers all its assets and liabilities to the company holding all the securities representing its capital. Directives 90/434 and 90/435 complement each other and that definition of the concept of ‘merger’ is also relevant for the interpretation of the concept of ‘liquidation’ within the meaning of Article 4(1) of Directive 90/435, so that that dissolution of a company cannot be considered to be a ‘liquidation’ within the meaning of that latter provision.

   (see paras 32, 33, 35-37, operative part)