Opinion of the Advocate General — ECLI:EU:C:2018:143
Date: 2018-03-01
Language of the case: Danish
Subject matter: Right of establishment;Taxation;Free movement of capital;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Denmark

Summary 90. Where tax at source is avoided on interest payments to capital investment companies resident in third countries, the primary issue is avoidance by the actual interest recipients (i.e. the investors) of tax on their interest income. In particular, abuse may be assumed to exist here if the corporate structure chosen is designed to take advantage of a lack of information exchange between the States involved in order to prevent the effective taxation of interest recipients. C. Information on the beneficial owner (Question 5) 91. By Question 5, the referring court asks whether the Member State that does not wish to recognise that the interest recipient is also the beneficial owner within the meaning of Directive 2003/49, because it is simply an artificial conduit company, is bound to state whom it deems to be the beneficial owner. The nub of this question referred is who bears the burden of proving the existence of an abuse. 92. In order for abuse of possible legal arrangements to exist, a legal arrangement must be chosen that differs from the arrangement normally chosen and gives a more favourable result than the ‘normal’ arrangement. In the present case, the ‘normal arrangement’ would have been a direct loan agreement between the investors and the claimant in the main proceedings for the purpose of acquiring the target company. 93. In principle, it is for the tax authorities to demonstrate that the approach chosen gives a more favourable tax result than the normal arrangement, although the taxable person may have a certain duty to assist. However, the taxable person may then ‘produce, if appropriate ..., evidence as to the commercial justification for the transaction in question’. (37) Should it transpire from that evidence that the essential aim (38) was not to avoid the tax that would normally be assessed, the approach chosen cannot be deemed abusive, especially as it is the State that provides taxable persons with such options. 94. It further follows from the case-law of the Court (39) that, if conduct is deemed abusive, the situation must be determined that would have existed in the absence of the circumstances that constitute the abusive practice and that redefined situation must be assessed in the light of the relevant provisions of national law and EU law. However, the identity of the beneficial owner must be clear. 95. Thus, from Denmark’s perspective, abuse within the meaning of Article 5 of Directive 2003/49 can only arise if interest disbursed directly would have been taxed accordingly in Denmark. However, this is precluded under Danish law if, disregarding the conduit company, the actual interest recipient is also an undertaking registered in a different Member State or the interest recipient is resident in a State with which Denmark has concluded a DTC. If the capital investment companies are indeed fiscally transparent companies, each investor would have to be considered individually in order to answer this question. 96. Therefore, the fifth question can be answered to the effect that a Member State that does not wish to recognise a company resident in a different Member State, to which the interest was paid, as the beneficial owner of the interest must in principle state whom it considers to be the beneficial owner in order to assume that abuse exists. This is necessary in order to determine whether a more favourable tax result is achieved as a result of the arrangement qualified as abusive. In particular in cross-border cases, the taxable person may have an enhanced duty to assist. D. Reliance on Article 5 of Directive 2003/49 (Questions 2 and 3) 97. By Questions 2, 2.1 and 3, the referring court asks (1) if Denmark can rely directly on Article 5 of Directive 2003/49 in order to refuse taxable persons exemption from tax. If this is not so, it must be clarified whether (2) by its current national law, Denmark has in fact adequately transposed Article 5 of Directive 2003/49. 1. A directive cannot be applied directly in order to create obligations to the detriment of the individual 98. If, based on the aforementioned criteria, abuse exists within the meaning of Article 5 of Directive 2003/49, the peculiarity of the present case is that Danish law contained no specific provision transposing Article 5 of Directive 2003/49. Nor, according to the referring court, was there any general provision to prevent abuse. The claimant in the main proceedings, in particular, is therefore of the opinion that it cannot be denied tax relief under national law even if abuse were assumed to exist. 99. However, it is not always necessary formally to enact the provisions of a directive (in this case Article 5 of Directive 2003/49) in specific legislation; on the contrary, the transposition of a directive may, depending on its content, be achieved through a general legal context, including general principles of national constitutional or administrative law, if it ensures the full application of the directive in a sufficiently clear and precise manner. (40) 100. The referring court refers in the proceedings for a preliminary ruling to the existence of two principles (the ‘reality doctrine’ and the principle of the ‘rightful income recipient’). However, it is common ground that these are irrelevant here if, in fact, the interest is formally paid first to the Luxembourg companies. 101. However, Article 5 of Directive 2003/49 allows the Member States to apply provisions to prevent abuse. That is in keeping with practice throughout the Union. Thus, all Member States have developed, to the greatest possible extent, instruments to prevent abuse of the law for the purposes of tax avoidance. (41) So there is a consensus, even under national tax law, that the application of the law must in no case be extended to such an extent that abusive practices by economic operators must be tolerated. This principle, which is accepted throughout the Union, (42) is now also enshrined in Article 6 of Directive 2016/1164. 102. In that sense, all national provisions, whether adopted in transposition of Directive 2003/49 or not, must respectively be interpreted and applied in accordance with this general principle of law and, in particular, with the wording and purpose of Regulation 2003/49 and Article 5 thereof. (43) The fact that, in interpreting national law in conformity with EU law, detriment to an individual may result does not militate against such interpretation. It is lawful, by way of national law provisions, that is to say, indirectly, to apply EU law to the detriment of an individual. (44) 103. A simple direct application of Article 5 of Directive 2003/49 to the claimant’s detriment would be denied the Danish authorities, also for reasons of legal certainty. (45) For example, a Member State cannot hold an individual to the provision of a directive that it has not transposed. (46) It is settled case-law that a directive cannot of itself impose obligations upon an individual, i.e. the directive cannot be invoked as such against him. (47) A Member State that did so would itself be guilty of ‘abusive conduct’, first, by not transposing a directive addressed to it (even though it could) and, second, by relying on a provision to prevent abuse enacted in a directive which it had not transposed. 104. Nor could the competent authorities in the main proceedings rely directly against the individual on the general principle of EU law that abuse of rights is prohibited. At least in cases falling within the scope of Directive 2003/49, such a principle has been given specific effect in Article 5(2) of the directive and has been expressed in a concrete manner. (48) If it were to be permitted, in addition, to have direct recourse to a general principle of law which in terms of content is much less clear and precise, there would be a danger that the harmonisation objective of Directive 2003/49 and of all other directives containing specific provisions to prevent abuse (such as Article 6 of Directive 2016/1164) would be undermined. Moreover, such an approach would undermine the prohibition, already mentioned, on directly applying non-transposed provisions of directives to the detriment of individuals. (49) 2. Case-law on VAT legislation is not transferable 105. This does not conflict with judgment delivered by the Court (50) in Italmoda and Cussens, in which the Court ruled that the prohibition of abusive practices must be interpreted as being capable, regardless of a national measure giving effect to it in the domestic legal order, of being applied directly in order to refuse exemption from VAT, without conflicting with the principles of legal certainty and legitimate expectation. 106. However, those two judgments referred exclusively to value added tax (VAT), which differs from the subject matter at issue here. First, VAT is much more harmonised under EU law and, as it is coupled to the funding of the Union, has far more of an impact on interests under EU law than national income tax. 107. Second, EU law (Article 325(1) and (2) TFEU) requires the Member States to take (effective) measures to collect VAT, (51) whereas the same does not apply under income tax law. Moreover, VAT law is particularly susceptible to fraud; therefore particularly effective enforcement of tax claims is required. In that sense, the Court itself drew a distinction in a recent judgment between VAT law and secondary EU law, which contains an express authority to prevent abuse. (52) Therefore, direct application of Article 5 of Directive 2003/49 to the detriment of the taxable person is out of the question. (53) 3. As to the existence of a specific national provision for the prevention of abuse 108. It will be the task of the referring court, however, to determine whether in the present case general provisions or principles of national law (including principles established in case-law) already apply, as a result of which, for example, sham transactions are disregarded under tax law or reliance on particular advantages for abusive ends is prohibited. 109. For a restriction of freedom of establishment to be justified on grounds of the prevention of abusive practices, the specific objective of such a restriction must be to prevent conduct involving the creation of wholly artificial arrangements which do not reflect economic reality, with a view to escaping the tax normally due on the profits generated by activities carried out on national territory. (54) 110. For that reason, Questions 2.1 and 3 can be answered to the effect that neither Paragraph 2(2)(d) of the Danish law on corporation tax, nor a DTC rule predicated on the beneficial owner for the purpose of taxing interest, suffice to be deemed to be a transposition of Article 5 of Directive 2003/49. 111. However, that would not apply to the application in conformity with EU law of the ‘reality doctrine’ and the principle of the ‘rightful income recipient’ in Denmark, both of which have been developed precisely in order to resolve the problem that civil law allows numerous arrangements, whereas tax law is applied to economic facts. Those legal principles therefore specifically target artificial arrangements or abuse of the law by the individual and therefore constitute a sufficiently specific legal basis on which to restrict freedom of establishment. Inasmuch as the claimant in the main proceedings pointed out several times at the hearing that Denmark has not expressly transposed Article 5 of Directive 2003/49, that would ultimately not matter. It is for the national court to determine that case by case. 112. The ‘reality doctrine’ developed in Denmark, interpreted in conformity with EU law, might therefore suffice as a legal basis on which to ignore wholly artificial or abusive arrangements, where they exist (see point 57 et seq.) for tax purposes. The ‘reality doctrine’ too seems to me to be nothing other than a particular kind of economic viewpoint which probably underlies the majority of abuse defence measures of the individual Member States. (55) This becomes clear at EU level, e.g. in Article 6(2) of Directive 2016/1164, under which an arrangement is deemed non-genuine to the extent that they are not put into place for valid commercial reasons which reflect economic reality. It is for the national court to determine whether that is the case. 113. If the aim of the arrangement is to prevent taxation of investors, then, despite the formal payment to the Luxembourg companies, from an economic point of view the payment is actually made to the capital investment companies or their investors. The payment to the Luxembourg companies simply reflects the (formal) reality under civil law, not the economic reality. E. Infringement of fundamental freedoms (Questions 6 and 7) 114. As the Luxembourg companies must be treated in principle as the beneficial owners (as explained in point 34 et seq.), no further consideration need be given to Questions 6 and 7 referred. 115. Inasmuch as, in application of the principles enshrined in national law, interpreted in compliance with EU law, the referring court finds that the arrangement in question is abusive, tax at source will apply under certain circumstances. However, the question then no longer arises in the present case, as that taxation is the result of abuse and it is settled case-law of the Court that abusive reliance on EU law is not permitted. (56) 116. That notwithstanding, however, the Court has also already ruled that different treatment of national and foreign interest recipients on the grounds of different taxation arrangements relates to situations which are not comparable. (57) Even if they were deemed to be comparable situations, restriction on the freedom of establishment would be justified under the case-law of the Court as long as the liability for Danish tax at source of the interest recipient resident abroad is no higher than the liability for Danish corporation tax of a national interest recipient. (58) 117. The same holds for different interest or a different accrual of the Danish corporation tax debt for the interest recipient and a Danish obligation to withhold tax at source for the interest payer. These are not similar situations as, on the one hand, a national tax (corporation tax) is charged and, on the other, a foreign tax payable by interest recipients (their income or corporation tax) is withheld and paid on their behalf. Differentiated accrual and interest payments are the result of the different technique and function of a tax at source (see point 86). VI. Conclusion 118. In view of the foregoing, I propose that the answers to the questions from the Østre Landsret (High Court of Eastern Denmark, Denmark) should be as follows: (1) The answer to Questions 1 to 1.4 is that a company resident in another Member State which owns the interest-bearing claim is treated in principle as the beneficial owner within the meaning of Article 1(1) of Directive 2003/49 on a common system of taxation applicable to interest and royalty payments made between associated companies of different Member States. The situation would be different only if it was acting not in its own name and on its own account, but for and on the account of a third party. The concept of beneficial owner must be interpreted under EU law autonomously and independently of the commentaries on Article 11 of the 1977 OECD Model Tax Convention or subsequent versions. (2) The answer to Question 2 is that a Member State cannot rely on Article 5 of Directive 2003/49 if it has not transposed it. (3) The answer to Question 3 is that neither Paragraph 2(2)(d) of the Danish law on corporation tax nor a rule in a double taxation agreement corresponding to Article 11 of the OECD Model Tax Convention can be treated as sufficient transposition of Article 5 of Directive 2003/49. However, that does not prevent general principles of national law whose purpose is to enable specific action to be taken against artificial arrangements or abuse by individuals from being interpreted and applied in conformity with EU law. (4) The answer to Question 4 is that abuse must be determined from an overall examination of all the facts of the case, which it is for the national court to conduct. (a) A wholly artificial arrangement that does not reflect economic reality or the essential aim of which is to avoid tax that would otherwise be payable based on the purpose of the law may constitute abuse under tax law. The tax authorities must demonstrate that an appropriate arrangement would have given rise to a tax liability and the taxable person must demonstrate that there are important, non-fiscal reasons for the arrangement chosen. (b) Where tax at source is avoided on interest payments to capital investment companies resident in third countries, the primary issue is avoidance by the actual interest recipients (i.e. the investors) of tax on their interest income. Abuse may be assumed to exist here if the corporate structure chosen is designed to take advantage of a lack of information exchange between the States involved to prevent the effective taxation of interest recipients. (5) The answer to Question 5 is that a Member State that does not wish to recognise a company resident in a different Member State as the beneficial owner must state whom it considers to be the beneficial owner in order to assume that abuse exists. In cross-border cases, the taxable person may have an enhanced duty to assist. (6) In light of the answers to Questions 1 and 4, there is no need to answer Questions 6 and 7. 1 Original language: German. 2 Cases C‑118/16, C‑119/16 (both joined with C‑115/16) and C‑299/16. 3 Council Directive 2003/49/EC of 3 June 2003 on a common system of taxation applicable to interest and royalty payments made between associated companies of different Member States (OJ 2003 L 157, p. 49). 4 Bekendtgørelse af lov om indkomstbeskatning af aktieselskaber m.v., selskabsskatteloven -Lovbekendtgørelse nr. 1037 of 24 August 2007 (Official Gazette No 1037 of 24 August 2007). 5 Kildeskatteloven — Lovbekendtgørelse nr. 1086 of 14 November 2005 (Official Gazette No 1086 of 14 November 2005). 6 Obviously other investors, such as banks and insurance companies, were also involved. 7 This describes a situation in which, although the company can conduct legal transactions, the shareholders, rather than the company, are directly allocated the company profits pro rata and must pay the tax. This means, as a rule, that it is the State of registration of the shareholders, rather than the State of registration of the company, which taxes ‘company income’ (in this case, the interest income of the capital investment companies) pro rata. 8 Judgment of 21 July 2011, Scheuten Solar Technology, C‑397/09, EU:C:2011:499, paragraph 28. 9 Judgment of 21 July 2011, Scheuten Solar Technology, C‑397/09, EU:C:2011:499, paragraph 27: ‘In this respect, Article 2(a) of Directive 2003/49 defines that interest as “income from debt-claims of every kind”. Only the actual beneficial owner can receive interest which constitutes income from such claims.’ 10 Rule 18(b) of the OECD Rules of Procedure: ‘Recommendations of the Organisation, made by the Council in accordance with Articles 5, 6 and 7 of the Convention, shall be submitted to the Members for consideration in order that they may, if they consider it opportune, provide for their implementation’. Available at https://www.oecd.org/legal/rules%20of%20Procedure%20OECD%20Oct%202013.pdf. 11 Judgments of 15 May 2008, Lidl Belgium, C‑414/06, EU:C:2008:278, paragraph 22; of 13 March 2007, Test Claimants in the Thin Cap Group Litigation, C‑524/04, EU:C:2007:161, paragraph 49; of 7 September 2006, N, C‑470/04, EU:C:2006:525, paragraph 45; of 12 May 1998, Gilly, C‑336/96, EU:C:1998:221, paragraph 31; and of 23 February 2006, van Hilten-van der Heijden, C‑513/03, EU:C:2006:131, paragraph 48; see also, however, judgment of 16 May 2017, Berlioz Investment Fund, C‑682/15, EU:C:2017:373, paragraph 67. 12 Judgment of 19 January 2006, Bouanich, C‑265/04, EU:C:2006:51, paragraphs 50 and 56. 13 Judgment of 17 July 1997, Leur-Bloem, C‑28/95, EU:C:1997:369, paragraph 41, and my Opinion in Kofoed, C‑321/05, EU:C:2007:86, point 60. 14 See also, judgments of 22 November 2017, Cussens and Others, C‑251/16, EU:C:2017:881, paragraph 59, and of 20 June 2013, Newey, C‑653/11, EU:C:2013:409, paragraph 49. 15 Judgments of 12 September 2006, Cadbury Schweppes and Cadbury Schweppes Overseas, C‑196/04, EU:C:2006:544, paragraph 35; of 6 April 2006, Agip Petroli, C‑456/04, EU:C:2006:241, paragraph 20; of 21 February 2006, Halifax and Others, C‑255/02, EU:C:2006:121, paragraphs 68 and 69; of 9 March 1999, Centros, C‑212/97, EU:C:1999:126, paragraph 24 and the case-law cited; see also my Opinion in Kofoed, C‑321/05, EU:C:2007:86, point 57. 16 Judgments of 17 December 2015, WebMindLicenses, C‑419/14, EU:C:2015:832, paragraph 34; of 21 February 2008, Part Service, C‑425/06, EU:C:2008:108, paragraph 56; and of 21 February 2006, Halifax and Others, C‑255/02, EU:C:2006:121, paragraph 77. 17 See also, judgments of 22 November 2017, Cussens and Others, C‑251/16, EU:C:2017:881, paragraph 27; of 5 July 2007, Kofoed, C‑321/05, EU:C:2007:408, paragraph 38; of 6 April 2006, Agip Petroli, C‑456/04, EU:C:2006:241, paragraph 20; of 12 September 2006, Cadbury Schweppes and Cadbury Schweppes Overseas, C‑196/04, EU:C:2006:544, paragraph 35; of 21 February 2006, Halifax and Others, C‑255/02, EU:C:2006:121, paragraphs 68 and 69; and of 9 March 1999, Centros, C‑212/97, EU:C:1999:126, paragraph 24 and the case-law cited; see also my Opinion in Kofoed, C‑321/05, EU:C:2007:86, point 57. 18 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 (OJ 1990 L 225, p. 1). 19 Council Directive (EU) 2016/1164 of 12 July 2016 laying down rules against tax avoidance practices that directly affect the functioning of the internal market (OJ 2016 L 193, p. 1). 20 Judgments of 20 December 2017, Deister Holding and Juhler Holding, C‑504/16 and C‑613/16, EU:C:2017:1009, paragraph 60; of 17 December 2015, WebMindLicenses, C‑419/14, EU:C:2015:832, paragraph 35; of 18 June 2009, Aberdeen Property Fininvest Alpha, C‑303/07, EU:C:2009:377, paragraph 64; and of 13 March 2007, Test Claimants in the Thin Cap Group Litigation, C‑524/04, EU:C:2007:161, paragraph 74; similarly, of 12 September 2006, Cadbury Schweppes and Cadbury Schweppes Overseas, C‑196/04, EU:C:2006:544, paragraph 55. 21 Judgments of 20 June 2013, Newey, C‑653/11, EU:C:2013:409, paragraph 46; of 12 July 2012, J.J. Komen en Zonen Beheer Heerhugowaard, C‑326/11, EU:C:2012:461, paragraph 35; of 27 October 2011, Tanoarch, C‑504/10, EU:C:2011:707, paragraph 51; and of 22 May 2008, Ampliscientifica and Amplifin, C‑162/07, EU:C:2008:301, paragraph 28. 22 On indirect taxation, see judgments of 22 November 2017, Cussens and Others, C‑251/16, EU:C:2017:881, paragraph 53; of 17 December 2015, WebMindLicenses, C‑419/14, EU:C:2015:832, paragraph 36; and of 21 February 2008, Part Service, C‑425/06, EU:C:2008:108, paragraph 45; similarly within the scope of the Mergers Directive: judgment of 10 November 2011, FOGGIA-Sociedade Gestora de Participações Sociais, C‑126/10, EU:C:2011:718, paragraph 35 and 36. 23 This is explicitly expressed in judgment of 22 November 2017, Cussens and Others, C‑251/16, EU:C:2017:881, paragraph 60. 24 Judgment of 20 December 2017, Deister Holding and Juhler Holding, C‑504/16 and C‑613/16, EU:C:2017:1009, paragraph 73. 25 Judgments of 25 October 2017, Polbud — Wykonawstwo, C‑106/16, EU:C:2017:804, paragraph 40; of 30 September 2003, Inspire Art, C‑167/01, EU:C:2003:512, paragraph 96; and of 9 March 1999, Centros, C‑212/97, EU:C:1999:126, paragraph 27. 26 Judgments of 17 December 2015, WebMindLicenses, C‑419/14, EU:C:2015:832, paragraph 42; of 22 December 2010, Weald Leasing, C‑103/09, EU:C:2010:804, paragraph 27; of 21 February 2008, Part Service, C‑425/06, EU:C:2008:108, paragraph 47; and of 21 February 2006, Halifax and Others, C‑255/02, EU:C:2006:121, paragraph 73. 27 Judgments of 17 December 2015, WebMindLicenses, C‑419/14, EU:C:2015:832, paragraph 42, and of 22 December 2010, RBS Deutschland Holdings, C‑277/09, EU:C:2010:810, paragraph 53. 28 Judgments of 12 September 2006, Cadbury Schweppes and Cadbury Schweppes Overseas, C‑196/04, EU:C:2006:544, paragraph 36; see, in that sense, judgment of 11 December 2003, Barbier, C‑364/01, EU:C:2003:665, paragraph 71. 29 Judgments of 17 December 2015, WebMindLicenses, C‑419/14, EU:C:2015:832, paragraph 42, and of 22 December 2010, RBS Deutschland Holdings, C‑277/09, EU:C:2010:810, paragraph 53. 30 See judgment of 12 September 2006, Cadbury Schweppes and Cadbury Schweppes Overseas, C‑196/04, EU:C:2006:544, paragraph 36; also, on the divergence between tax rates permitted even under harmonised tax law, judgment of 17 December 2015, WebMindLicenses, C‑419/14, EU:C:2015:832, paragraphs 39 and 40. 31 Judgments of 13 March 2007, Test Claimants in the Thin Cap Group Litigation, C‑524/04, EU:C:2007:161, paragraph 73; of 12 September 2006, Cadbury Schweppes and Cadbury Schweppes Overseas, C‑196/04, EU:C:2006:544, paragraph 50; see, in that sense, judgments of 4 March 2004, Commission v France, C‑334/02, EU:C:2004:129, paragraph 27, and of 26 September 2000, Commission v Belgium, C‑478/98, EU:C:2000:497, paragraph 45. 32 Judgment of 20 December 2017, Deister Holding and Juhler Holding, C‑504/16 and C‑613/16, EU:C:2017:1009, paragraph 66. 33 See Case C‑119/16. 34 See Case C‑117/16. 35 See Case C‑299/16. 36 Judgments of 24 June 2010, P. Ferrero and General Beverage Europe, C‑338/08 and C‑339/08, EU:C:2010:364, paragraphs 26 and 34, and of 26 June 2008, Burda, C‑284/06, EU:C:2008:365, paragraph 52. 37 Judgment of 13 March 2007, Test Claimants in the Thin Cap Group Litigation, C‑524/04, EU:C:2007:161, paragraph 92. 38 Judgments of 22 November 2017, Cussens and Others, C‑251/16, EU:C:2017:881, paragraph 53; of 17 December 2015, WebMindLicenses, C‑419/14, EU:C:2015:832, paragraph 36; and of 21 February 2008, Part Service, C‑425/06, EU:C:2008:108, paragraph 45. 39 Judgments of 22 November 2017, Cussens and Others, C‑251/16, EU:C:2017:881, paragraph 47; of 17 December 2015, WebMindLicenses, C‑419/14, EU:C:2015:832, paragraph 52; and of 21 February 2008, Part Service, C‑425/06, EU:C:2008:108, paragraph 58. 40 In that sense, see settled case-law, e.g. judgments of 5 July 2007, Kofoed, C‑321/05, EU:C:2007:408, paragraph 44; of 6 April 2006, Commission v Austria, C‑428/04, EU:C:2006:238, paragraph 99; and of 16 June 2005, Commission v Italy, C‑456/03, EU:C:2005:388, paragraph 51; and my Opinion in Kofoed, C‑321/05, EU:C:2007:86, point 62. 41 Some Member States have enacted general clauses for the prevention of abuse. They include the Federal Republic of Germany (Paragraph 42 of the Abgabenordnung (General Tax Code)), Luxembourg (Paragraph 6 of the Tax Adjustment Law), Belgium (Article 344(1) of the Code des impôts sur les revenus (Income Tax Code)), Sweden (Article 2 of Law 1995:575) and Finland (Article 28 of the Law on income tax). Some have special rules, such as Denmark (on transfer prices under Paragraph 2 of the Ligningslovens (Law on assessment)) or general principles, such as the Federal Republic of Germany (e.g. the principle of substance over form which can be extrapolated, inter alia, from Paragraph 39 et seq. of the General Tax Code). 42 See judgments of 22 November 2017, Cussens and Others, C‑251/16, EU:C:2017:881, paragraph 27; of 21 February 2006, Halifax and Others, C‑255/02, EU:C:2006:121, paragraph 68; of 3 March 2005, Fini H, C‑32/03, EU:C:2005:128, paragraph 32; of 14 December 2000, Emsland-Stärke, C‑110/99, EU:C:2000:695, paragraph 51; and of 23 March 2000, Diamantis, C‑373/97, EU:C:2000:150, paragraph 33. 43 See settled case-law on the obligation of national courts to interpret national law in accordance with directives, in particular judgments of 4 July 2006, Adeneler and Others, C‑212/04, EU:C:2006:443, paragraph 108 et seq.; of 5 October 2004, Pfeiffer and Others, C‑397/01 to C‑403/01, EU:C:2004:584, paragraph 113 et seq.; and of 10 April 1984, von Colson and Kamann, 14/83, EU:C:1984:153, paragraph 26. 44 Judgments of 5 July 2007, Kofoed, C‑321/05, EU:C:2007:408, paragraph 45; of 7 January 2004, Wells, C‑201/02, EU:C:2004:12, paragraph 57; of 14 July 1994, Faccini Dori, C‑91/92, EU:C:1994:292, paragraphs 20, 25 and 26; and of 13 November 1990, Marleasing, C‑106/89, EU:C:1990:395, paragraphs 6 and 8; and my Opinion in Kofoed, C‑321/05, EU:C:2007:86, point 65. 45 Judgment of 5 July 2007, Kofoed, C‑321/05, EU:C:2007:408, paragraph 42. 46 Judgments of 22 November 2017, Cussens and Others, C‑251/16, EU:C:2017:881, paragraph 49; of 21 September 2017, DNB Banka, C‑326/15, EU:C:2017:719, paragraph 41; of 5 July 2007, Kofoed, C‑321/05, EU:C:2007:408, paragraph 42; and of 19 November 1991, Francovich and Others, C‑6/90 and C‑9/90, EU:C:1991:428, paragraph 21; see also my Opinion in Kofoed, C‑321/05, EU:C:2007:86, point 66. 47 Judgments of 5 July 2007, Kofoed, C‑321/05, EU:C:2007:408, paragraph 42, and my Opinion in Kofoed, C‑321/05, EU:C:2007:86, point 65; see also, for example, judgment of 5 October 2004, Pfeiffer and Others, C‑397/01 to C‑403/01, EU:C:2004:584, paragraph 108 and the case-law cited. 48 See my Opinion in Kofoed, C‑321/05, EU:C:2007:86, point 67, and judgment of 5 July 2007, Kofoed, C‑321/05, EU:C:2007:408, paragraph 38 et seq. See also my Opinion in Satakunnan Markkinapörssi und Satamedia, C‑73/07, EU:C:2008:266, point 103. 49 This is vaguely expressed in judgment of 22 November 2005, Mangold, C‑144/04, EU:C:2005:709, paragraphs 74 to 77, see my Opinion in Kofoed, C‑321/05, EU:C:2007:86, point 67; it is clearly expressed in the judgment of 5 July 2007, Kofoed, C‑321/05, EU:C:2007:408, paragraph 42. 50 Judgments of 22 November 2017, Cussens and Others, C‑251/16, EU:C:2017:881, and of 18 December 2014, Schoenimport ‘Italmoda’ Mariano Previti, C‑131/13, C‑163/13 and C‑164/13, EU:C:2014:2455. 51 Judgments of 8 September 2015, Taricco and Others, C‑105/14, EU:C:2015:555, paragraph 36 et seq., and of 26 February 2013, Åkerberg Fransson, C‑617/10, EU:C:2013:105, paragraph 26. 52 This is explicit in the judgment of 22 November 2017, Cussens and Others, C‑251/16, EU:C:2017:881, paragraphs 28, 31 and 38. 53 The Court ruled on this in the judgment of 5 July 2007, Kofoed, C‑321/05, EU:C:2007:408, paragraph 42. 54 Judgments of 18 June 2009, Aberdeen Property Fininvest Alpha, C‑303/07, EU:C:2009:377, paragraph 64; of 12 September 2006, Cadbury Schweppes and Cadbury Schweppes Overseas, C‑196/04, EU:C:2006:544, paragraph 55; and of 13 March 2007, Test Claimants in the Thin Cap Group Litigation, C‑524/04, EU:C:2007:161, paragraph 74. 55 The Member States often base decisions on the factual content of an act or a transaction (e.g. in Finland, Hungary, Ireland, Italy, Lithuania, the Netherlands, Portugal and Slovenia). 56 See, for example, judgments of 22 November 2017, Cussens and Others, C‑251/16, EU:C:2017:881, paragraph 27; of 21 February 2006, Halifax and Others, C‑255/02, EU:C:2006:121, paragraph 68; and of 14 December 2000, Emsland-Stärke, C‑110/99, EU:C:2000:695, paragraph 51 and case-law cited. 57 Judgment of 22 December 2008, Truck Center, C‑282/07, EU:C:2008:762, paragraph 41; upheld by judgment of 18 October 2012, X, C‑498/10, EU:C:2012:635, paragraph 26. 58 See judgments of 17 September 2015, Miljoen and Others, C‑10/14, C‑14/14 and C‑17/14, EU:C:2015:608, paragraph 90, and of 18 October 2012, X, C‑498/10, EU:C:2012:635, paragraph 42 et seq.