Judgment — ECLI:EU:C:2012:485
Date: 2012-07-19
Language of the case: Finnish
Court formation: Third Chamber
Subject matter: European Free Trade Association (EFTA);Right of establishment;External relations;Taxation;Free movement of capital
Procedure: Reference for a preliminary ruling
Origin: Finland

Summary of the Judgment 1. Approximation of laws — Common system of taxation applicable to mergers, divisions, partial divisions, transfers of assets and exchanges of shares concerning companies of different Member States — Directive 2009/133 — Scope — Exchange of shares with a company established in a third country party to the Agreement on the European Economic Area — Not included (Council Directive 2009/133, Art. 1) 2. Member States — Retained powers — Direct taxation — Obligation to exercise that competence consistently with EU law and with the Agreement on the European Economic Area 3. Freedom of movement for persons — Freedom of establishment — Provisions of the Treaty — Scope — Exchange of shares involving the ownership or taking control of a company — Included (Art. 49 TFEU) 4. International agreements — Agreement on the European Economic Area — Freedom of movement for persons — Freedom of establishment — Tax legislation or Fiscal legislation — Corporation tax — Exchanges of shares with a company established in a Member State and company established in a third country party to that agreement — Treatment like an exchange of shares as a taxable disposal between resident companies or between a resident company and a company established in another Member State — Not permissible — Justification — Need to preserve the effectiveness of tax supervision — Condition (Council Directives 77/799 and 2011/16; EEA Agreement, Art. 31) 1. See the text of the decision. (see para. 14) 2. See the text of the decision. (see para. 16) 3. See the text of the decision. (see paras 17-19) 4. Article 31 of Agreement on the European Economic Area precludes legislation of a Member State which treats an exchange of shares between a company established in that Member State and a company established in a third country that is a party to that agreement as a taxable disposal of shares whereas such an operation would be neutral for tax purposes if it concerned only domestic companies or companies established in other Member States, if there is, between that Member State and the third country, an agreement on mutual administrative assistance in the field of taxation which provides for an exchange of information between the national authorities which is as effective as that provided for in Directive 77/799 concerning mutual assistance by the competent authorities of the Member States in the field of direct taxation and Directive 2011/16 on administrative cooperation in the field of taxation and repealing Directive 77/799, which is for the referring court to ascertain. In such a case, the Member State concerned cannot rely on the need to preserve the effectiveness of tax supervision in order to justify the difference in treatment at issue. (see paras 38, 39, operative part)