Keywords
Summary

Keywords

1. Preliminary rulings – Jurisdiction of the Court – Interpretation sought owing to the applicability to an internal situation of a provision of Union law made applicable by national law – Jurisdiction to provide such an interpretation

(Art. 267 TFEU)

2. Approximation of laws – Common system of taxation applicable to mergers, divisions, transfers of assets and exchanges of shares concerning companies of different Member States – Directive 90/434 – Operations having as their purpose fraud or tax evasion

(Council Directive 90/434, Art. 11(1)(a))

Summary

1. Where, in regulating purely internal situations, domestic legislation adopts the same solutions as those adopted in Union law in order, in particular, to avoid discrimination against foreign nationals or any distortion of competition, it is clearly in the Union interest that, in order to forestall future differences of interpretation, provisions or concepts taken from Community law should be interpreted uniformly, irrespective of the circumstances in which they are to apply.

(see para. 33)

2. Article 11(1)(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 is to be interpreted as meaning that the favourable arrangements introduced by that directive may not be withheld from a taxpayer who has sought, by way of a legal stratagem involving a company merger, to avoid the levying of a transaction tax, where that tax does not come within the scope of application of that directive.

It is only by way of exception and in specific cases that Member States may, pursuant to that article, refuse to apply or withdraw the benefit of all or any part of the provisions of that directive. Consequently, Article 11(1)(a) of Directive 90/434, as a provision setting out an exception, must be interpreted strictly, regard being had to its wording, purpose and context. By making reference, as regards valid economic reasons, to the restructuring or rationalisation of the activities of the companies participating in the operation in question, in which case there can be no presumption of tax evasion or tax avoidance, that provision is therefore clearly limited to company mergers and other reorganisational operations concerning them and is applicable only to taxes arising from those operations.

In addition, Directive 90/434 does not lead to a comprehensive harmonisation of the taxes that can be charged on a merger or on a similar operation between companies of different Member States. By introducing tax rules neutral from the point of view of competition, that directive confines itself to resolving certain tax disadvantages connected with the cross-border restructuring of undertakings. It follows that only the taxes expressly referred to in Directive 90/434 may benefit from the favourable arrangements introduced by that directive and are, therefore, liable to come within the scope of the exemption provided for in Article 11(1)(a) thereof. There being nothing in that directive to suggest that it intended to extend the benefit of those favourable arrangements to other taxes, such as a tax levied on the acquisition of real property situated in the national territory, that latter tax must be regarded as continuing to fall within the ambit of the fiscal powers of the Member States, and the benefit of the favourable arrangements introduced by Directive 90/434 may not be withheld, under Article 11(1)(a) of that directive, in order to compensate for the non-payment of a tax, the basis and rate of which necessarily differ from those applicable to mergers of companies and other reorganisational operations concerning them.

(see paras 45-47, 49-50, 52-54, 56, operative part)