# CE2004078EN.01017501.xml

| 27.3.2004 | EN | Official Journal of the European Union | CE 78/175 |
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27.3.2004

EN

Official Journal of the European Union

CE 78/175

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(2004/C 78 E/0180)

WRITTEN QUESTION P-2823/03

by Françoise Grossetête (PPE-DE) to the Commission

(18 September 2003)

Subject:   Annex to Directive 90/435/EEC

Subject:

The success currently enjoyed by simplified joint stock companies (Sociétés par Actions Simplifiées (SAS)) creates numerous problems, particularly in the following circumstances.

The characteristics of this type of company do not appear in the annex to Directive 90/435/EEC of 23 July 1990 (1) (see p. 6 for the list of eligible companies).

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Thus difficulties arise especially with cross-border leveraged buy-outs and takeovers of companies.

However, the SAS type of company is a continuation of the public limited company (‘société anonyme’ (SA)), which does figure in the annex to Directive 90/435/EEC.

Are the provisions concerning the SA directly applicable in the case of the SAS in the present context?

If not, will the Commission propose an amendment to the above directive or update its annexes?

Answer given by Mr Bolkestein on behalf of the Commission

(10 October 2003)

(10 October 2003)

The scope of Council Directive 90/435/EEC of 23 July 1990 on the common system of taxation applicable in the case of parent companies and subsidiaries of different Member States is defined in its Article 2.

According to this provision, the Directive applies to companies which:

| — | take one of the forms listed in the Annex to the Directive; |
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take one of the forms listed in the Annex to the Directive;

| — | are resident for tax purposes in a Member State; |
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are resident for tax purposes in a Member State;

| — | are subject to corporate tax without the possibility of an option or of being exempt. |
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are subject to corporate tax without the possibility of an option or of being exempt.

In particular, the list refers to the following French companies: companies under French law known as ‘société anonyme’, ‘société en commandite par actions’, ‘société à responsabilité limitée’ and industrial and commercial public establishments and undertakings.

The French ‘societé par actions simplifiés’ (SAS) is not included in the list of the Annex. Neither does it have the legal form of one of the companies above mentioned. Thus, the Directive is not applicable to it.

The Commission adopted a proposal on 29 July 2003 (2), to amend Directive 90/435/EEC and in particular the list of companies to which it applies. Among the new entries in the list, the SAS is included. Thus, if the Council adopts this proposal, the SAS will enjoy the benefits of the Directive.

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Moreover, the same issue concerns 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 concernin companies of different Member States (3). The Commission services are currently working on a proposal to amend this Directive in order, inter alia, to extend its scope to the SAS.

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(1)  OJ L 225, 20.8.1990, p. 6.

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(2)  COM(2003) 462 final.

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(3)  OJ L 225, 20.8.1990.

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