Opinion of the Advocate General — ECLI:EU:C:2001:436
Date: 2001-09-11
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Taxation;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Denmark

Summary of the Judgment 
1. Questions referred for a preliminary ruling — Jurisdiction of the Court — Limits — 
Interpretation sought owing to the applicability, to purely internal situations, of 
provisions of a directive transposed into national law following alignment with 
Community law of the treatment accorded to internal situatiotis — Jurisdiction to 
provide such an interpretation 
(Art. 234 EC) 
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SUMMARY — CASE C-43/00 
2. Approximation of laws — Common system of taxation applicable to mergers, 
divisions, transfers of assets and exchanges of shares concerning companies of different 
Member States — Directive 90/434 — Transfer of a branch of activity — Con­
cept — Transaction involving maintenance by the transferring company of the 
proceeds of a loan contracted by it and the transfer of the resulting obligations to 
the company receiving the transfer — Excluded — Retention by the transferring 
company of a small number of shares in a third company — Irrelevant 
(Council Directive 90/434, Art. 2(c) and (i)) 
3. Approximation of laws — Common system of taxation applicable to mergers, 
divisions, transfers of assets and exchanges of shares concerning companies of different 
Member States — Directive 90/434 — Transfer of a branch of activity — Indepen­
dent business — Concept — Assessment by the national court 
(Council Directive 90/434, Art. 2(i)) 
1. The Court has jurisdiction under 
Article 234 EC to interpret the provi­
sions of a directive even though they do 
not directly govern the situation at 
issue in the main proceedings but the 
national legislature has decided, when 
transposing the provisions of the direc­
tive into national law, to treat purely 
internal situations in the same way as 
those governed by the directive and has 
therefore aligned the provisions gov­
erning purely internal situations with 
- Community law. 
Where, in regulating purely internal 
situations, domestic legislation adopts 
the same solutions as those adopted in 
Community law in order, particularly, 
to avoid the appearance of discrimi­
nation against foreign nationals or any 
distortion of competition, it is clearly 
in the Community interest that, in 
order to forestall future differences of 
interpretation, provisions or concepts 
taken from Community law should be 
interpreted uniformly, irrespective of 
the circumstances in which they are to 
apply. 
(see paras 17-19) 
2. Article 2(c) and (i) of Directive 90/434 
on the common system of taxation 
applicable to mergers, divisions, 
transfers of assets and exchanges of 
shares concerning companies of differ­
ent Member States must be interpreted 
as meaning that there is no transfer of 
assets, in the form of a transfer of a 
branch of activity, within the meaning 
of that directive where the terms of a 
transaction are such that the proceeds 
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ANDERSEN OG JENSEN 
of a significant loan contracted by the 
transferring company remain with that 
company and the obligations arising 
from the loan are transferred to the 
company receiving the transfer. For a 
transfer of assets to be covered by the 
directive, it is necessary that the assets 
and liabilities relating to a branch of 
activity should be transferred in their 
entirety. 
It is immaterial in this regard that the 
transferring company retains a small 
number of shares in a third company, 
as that fact is not such as to exclude a 
transfer of a branch of activity unre­
lated to those shares. 
(see paras 24, 25, 28, 29 
and operative part 1) 
3. The question whether a transfer of 
assets involves an independent business 
within the meaning of Article 2(i) of 
Directive 90/434, that is to say, an 
entity capable of functioning by its 
own means, must be assessed primarily 
from a functional point of view — the 
assets transferred must be able to 
operate as an independent undertaking 
without needing to have recourse, for 
that purpose, to additional investments 
or transfers of assets — and only sec­
ondarily from a financial point of view, 
this being a matter to be left to the 
assessment of the national court in 
view of the special circumstances of 
each case. That will, more particularly, 
be the case where a credit facility 
necessary for the future cash-flow 
requirements of the company receiving 
the transfer must be granted to it by a 
financial institution in return for secur­
ity provided in the form of shares 
representing the capital of that com­
pany. 
(see paras 35, 37 and 38, 
and operative part 2) 
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