Opinion of the Advocate General — ECLI:EU:C:2006:40
Date: 2006-01-17
Language of the case: Dutch
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Taxation;Indirect taxation
Procedure: Reference for a preliminary ruling
Origin: Netherlands

summary, strictly speaking, a transfer of shares does not constitute the only means of ‘retaining’ the exemption envisaged by Article 7(1)(bb). I would observe, moreover, that, from the Directive’s perspective, such transactions involving the transfer of assets ‘should be regarded in (exactly) the same light, from an economic point of view’, as exchanges of shares (second recital in the preamble to Directive 73/79). (12) 45. It seems to me, therefore, that the fact that a merger transaction does not entail a transfer of shares is not of itself relevant for the purposes of maintaining the benefit of the exemption, provided that the merger in question is one of the types of transaction referred to in Article 7(1)(bb). It seems to me that this is unquestionably the case with mergers, such as the one at issue in this case, in the course of which a capital company acquires the entire assets and liabilities of another company. 46. I therefore consider that it may be concluded that the fact that a transferring company is dissolved as a result of a merger such as that at issue in the main proceedings is not a relevant factor for the purposes of maintaining the benefit of the exemption from payment of capital duty under Article 7(1) of the Directive. IV – Conclusion 47. In the light of the foregoing considerations, I propose that the Court reply to the Hoge Raad der Nederlanden as follows: (1) Where, within five years after the acquisition of shares that is exempt from capital duty, the acquiring company no longer holds those shares because the transferring company has been the subject of a merger, the conditions laid down by Article 7(1) of Council Directive 69/335/EEC, as amended by Council Directive 85/303/EEC, do not apply to the shares of the party acquiring the transferring company which were held by the acquiring company as a result of the merger. (2) The fact that a transferring company is dissolved as a result of a merger such as that at issue in the main proceedings is not a relevant factor for the purposes of maintaining the benefit of the exemption from payment of capital duty under Article 7(1) of Directive 69/335/EEC, as amended by Directive 85/303/EEC. 1 – Original language: Italian. 2 – OJ 1969 L 249, p. 25. 3 – Council Directive 73/79/EEC of 9 April 1973 varying the field of application of the reduced rate of capital duty provided for in respect of certain company reconstruction operations by Article 7(1)(b) of the Directive concerning indirect taxes on the raising of capital (OJ 1973 L 103, p. 13). 4 – Council Directive 85/303/EEC of 10 June 1985 amending Directive 69/335/EEC concerning indirect taxes on the raising of capital (‘Directive 85/303’); (OJ 1985 L 156, p. 23). 5 – Stb. 1970, No 611, as amended by the Law of 13 December 1996 (Stb. 1996, No 652). 6 – Unofficial translation. 7 – Decree of 22 June 1971. Stb. No 793, most recently amended, insofar as is relevant for the purposes of this case, by Decree of 27 February 1996, Stb. No 144. 8 – Unofficial translation. 9 – See also, to that effect, Case C-50/91 Commerz-Credit-Bank [1992] ECR I-5225, paragraph 11. It should be noted that the third recital in the preamble to Directive 85/303 actually states that ‘the best solution for attaining these objectives (fostering the regrouping and development of undertakings and stimulating investment) would be to abolish capital duty’. 10 – In the observations submitted in this case by the Advocate General at the Hoge Raad – to which the national court refers in its order for reference – he explains that under Netherlands law a merger such as that in the main proceedings does not entail a proper transfer of shares in the true meaning of the word. In fact, after a merger, the shareholders in the acquired company become automatically the shareholders in the acquiring company. 11 – I am referring here to the following sentence from Article 7(1)(bb): ‘However, the reduced rate shall remain applicable if during the relevant period the shares in question are transferred in the course of a transaction qualifying for the reduced rate in accordance with paragraph 1 or subparagraph 1(b) or on the liquidation of the company which acquired the shares’. 12 – See also, to that effect, Case C-164/90 Muwi Bouwgroep [1991] ECR I-6049, paragraph 23.