Judgment — ECLI:EU:C:2013:632
Date: 2013-10-03
Language of the case: French
Court formation: Tenth Chamber
Subject matter: Right of establishment
Procedure: Reference for a preliminary ruling
Origin: Belgium

Summary — Judgment of the Court (Tenth Chamber), 3 October 2013 1. Freedom of establishment — Companies — Directive 78/660– Annual accounts of certain types of companies — Directive only for accounting purposes which is not designed to lay down the conditions for determination of the tax base (Council Directive 78/660) 2. Freedom of establishment — Companies — Directive 78/660 — Annual accounts of certain types of companies — Valuation of assets on the basis of their acquisition price or their production cost — Exceptions — Exceptional cases — Concept — Acquisition of certain assets at a price considerably lower than their real value giving a distorted view of the company’s assets — Not included (Council Directive 78/660, Arts 2(3) to (5), 31(1)(c) and 32) 1. See the text of the decision. (see para. 28) 2. The principle that a true and fair view must be given, set out in Article 2(3) to (5) of Fourth Directive 78/660 on the annual accounts of certain types of companies, does not permit the principle of valuation of assets on the basis of their acquisition price or their production cost, contained in Article 32 of that directive, to be departed from in favour of a valuation on the basis of their real value, where the acquisition price or the production cost of those assets is manifestly lower than their real value. Under Article 32 of that directive, the true and fair view which the annual accounts of a company must give is based on a valuation of the assets not on the basis of their real value, but on the basis of their historical cost. Although it is true that, under Article 2(5) of that directive, it is possible that, in exceptional cases, Article 32 must be departed from where the use of that method would give a distorted view of the companies’ assets, financial position and profit or loss, however, the undervaluation of assets in company accounts cannot, in itself, be considered to be an exceptional case. The possibility that certain assets would be undervalued in company accounts where their acquisition value is lower than their real value is merely the necessary corollary of the choice made by the EU legislature, in Article 32 of that directive, to opt for a valuation method based not on the real value of the assets but on their historical cost. Furthermore, the undervaluation of certain assets in a company’s accounts, is consistent with the principle of making valuations on a prudent basis laid down in Article 31(1)(c) of that directive. In particular, the valuation of such assets at their real value would reveal a capital gain in the company accounts contrary to Article 31(1)(c)(aa) of that directive, according to which only profits made at the balance sheet date may be included. (see paras 35, 37-40, 42, operative part)