# C_2017144EN.01001102.xml

| 8.5.2017 | EN | Official Journal of the European Union | C 144/11 |
| --- | --- | --- | --- |

8.5.2017

EN

Official Journal of the European Union

C 144/11

---

Judgment of the Court (First Chamber) of 8 March 2017 (request for a preliminary ruling from the Conseil d’État — France) — Euro Park Service, having assumed the rights and obligations of Cairnbulg Nanteuil v Ministre des finances et des comptes publics

(Case C-14/16) (1)

1

((Reference for a preliminary ruling - Direct taxation - Companies of different Member States - Common system of taxation - Merger by acquisition - Prior approval of the tax authority - Directive 90/434/EEC - Article 11(1)(a) - Tax evasion or avoidance - Freedom of establishment))

(2017/C 144/15)

Language of the case: French

Referring court

Referring court

Conseil d’État

Parties to the main proceedings

Parties to the main proceedings

Appellant: Euro Park Service, having assumed the rights and obligations of Cairnbulg Nanteuil

Appellant:

Respondent: Ministre des finances et des comptes publics

Respondent:

Operative part of the judgment

Operative part of the judgment

| 1. | In so far as Article 11(1)(a) of Council Directive 90/434/EEC of 23 July 1990 on the common system of taxation applicable to mergers, divisions, transfers of assets and exchanges of shares concerning companies of different Member States does not carry out exhaustive harmonisation, EU law allows for the assessment of the compatibility of national legislation, such as that at issue in the main proceedings, in the light of primary law, where that legislation was adopted to transpose into national law the option provided for in that provision. |
| --- | --- |

1.

In so far as Article 11(1)(a) of Council Directive 90/434/EEC of 23 July 1990 on the common system of taxation applicable to mergers, divisions, transfers of assets and exchanges of shares concerning companies of different Member States does not carry out exhaustive harmonisation, EU law allows for the assessment of the compatibility of national legislation, such as that at issue in the main proceedings, in the light of primary law, where that legislation was adopted to transpose into national law the option provided for in that provision.

| 2. | Article 49 TFEU and Article 11(1)(a) of Directive 90/434 must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which, in the case of a cross-border merger, makes the granting of the tax advantages applicable to such an operation under that directive, in the present case the deferral of the taxation of the capital gains relating to the assets transferred by a French company to a company established in another Member State, subject to a process of prior approval under which, in order to obtain that approval, the taxpayer must show that the operation concerned is justified for commercial reasons, that it does not have as its principal objective, or as one of its principal objectives, tax evasion or tax avoidance and that its terms make it possible for the capital gains deferred for tax purposes to be taxed in the future, whereas in the case of a national merger such a deferral is granted without the taxpayer being made subject to such a process. |
| --- | --- |

2.

Article 49 TFEU and Article 11(1)(a) of Directive 90/434 must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which, in the case of a cross-border merger, makes the granting of the tax advantages applicable to such an operation under that directive, in the present case the deferral of the taxation of the capital gains relating to the assets transferred by a French company to a company established in another Member State, subject to a process of prior approval under which, in order to obtain that approval, the taxpayer must show that the operation concerned is justified for commercial reasons, that it does not have as its principal objective, or as one of its principal objectives, tax evasion or tax avoidance and that its terms make it possible for the capital gains deferred for tax purposes to be taxed in the future, whereas in the case of a national merger such a deferral is granted without the taxpayer being made subject to such a process.

---

(1)  OJ C 106, 21.3.2016.

1

---