Opinion of the Advocate General — ECLI:EU:C:2007:86
Date: 2007-02-08
Language of the case: Danish
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Taxation;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Denmark

summary, therefore, it is appropriate to find that: A specific provision transposing Article 11(1)(a) of Directive 90/434 is not necessarily required in order to refuse to apply or withdraw the benefit of all or any part of the provisions of Title II of Directive 90/434 in an individual case. Instead, recourse may be had for that purpose also to general provisions of national law, including general provisions of national constitutional and administrative law, provided that such provisions are applied and interpreted in conformity with Community law and, in particular, with the wording and objectives of Directive 90/434 and Article 11(1)(a) thereof. By contrast, neither direct application of Article 11(1)(a) of Directive 90/434 to the detriment of an individual nor direct recourse to a general Community prohibition on the misuse of law is permitted. VI – Conclusion 69. In the light of the foregoing observations, I propose that the Court should reply to the Østre Landsret as follows: (1) Payments of money, for example, profit distributions, effected by an acquiring company, not agreed in a binding manner as consideration for the holding by which that company acquires a majority of the voting rights in the acquired company are not included within the concept of a cash payment within the meaning of Article 2(d) of Directive 90/434/EEC, even if those payments were from the outset planned by the parties and were effected at a time closely connected to the acquisition of that holding. (2) A specific provision transposing Article 11(1)(a) of Directive 90/434/EEC is not necessarily required in order to refuse to apply or withdraw the benefit of all or any part of the provisions of Title II of Directive 90/434/EEC in an individual case. Instead, recourse may be had for that purpose also to general provisions of national law, including general provisions of national constitutional and administrative law, provided that such provisions are applied and interpreted in conformity with Community law and, in particular, with the wording and objectives of Directive 90/434/EEC and Article 11(1)(a) thereof. By contrast, neither direct application of Article 11(1)(a) of Directive 90/434/EEC to the detriment of an individual nor direct recourse to a general Community prohibition on the misuse of law is permitted. 1 – Original language: German. 2 – For reasons of simplicity, the expression ‘restructuring’ will be used hereinafter as a generic concept to denote mergers and divisions of companies, transfers of assets thereto and exchanges of shares thereof. 3 – OJ 1990 L 225, p. 1. 4 – Council directive of 17 February 2005 amending Directive 90/434/EEC on the common system of taxation applicable to mergers, divisions, transfers of assets and exchanges of shares concerning companies of different Member States (OJ 2005 L 58, p. 19). 5 – 24 March 2005 constitutes the 20th day following that of the publication of Directive 2005/19 in the Official Journal of the European Union. In that regard, see Article 254(1) EC. 6 – Article 2 of Directive 2005/19. 7 – The following citation of legislative provisions is based upon information provided by the referring court in its reference for a preliminary ruling and on supplements thereto contributed by the Danish Government at the Court’s request. 8 – Lovtidende 1993, p. 4171. 9 – Paragraph 13(3), in conjunction with Paragraph 4, of the Aktieavancebeskatningslov provides for special rules governing exchanges of shares in companies listed on a stock exchange; these are not relevant in the present case. 10– According to the information provided by the Østre Landsret, with reference to the explanatory notes to the draft law (Folketingstidende, Supplement A, 1991/92, column 517). 11 – Lovtidende 1992, p. 3374. 12 – According to the information provided by the referring court, supplemented by information from Mr Kofoed, the measure concerned took the form of a draft law of 2 November 1994, approved on 25 April 1995. 13 – Lovtidende 1992, p. 5478. 14 – Lovtidende 1992, p. 3914. 15 – According to the information provided by Mr Kofoed, uncontested by the other parties. 16 – Signed in Copenhagen on 4 February 1964. 17 – According to the information provided by the referring court, the parties to the main proceedings agree on the fact that that distribution of profits was effected in accordance with the applicable provisions of Irish law. 18 – First, second and third recitals in the preamble to Directive 90/434. 19 – On that possibility, see below, points 43 to 54 of this Opinion. 20 – On that possibility, see below, points 55 to 68 of this Opinion. 21 – See, to that effect, Case C-17/03 VEMWand Others [2005] ECR I-4983, paragraph 41; Case C‑212/04 Adenelerand Others [2006] ECR I-6057, paragraph 60; and Case C-36/05 Commission v Spain [2006] ECR I-0000, paragraph 25. 22 – For reasons of simplicity, reference will be made hereinafter only to (acquisition of) the majority holding. 23 – Among the different language versions of Article 2(d) of Directive 90/434 only the Dutch appears to use the relatively narrow term of ‘rechtshandeling’, whereas in the Czech (‘operace’), Danish (‘transaktion’), Greek (‘πράξη’), English (‘operation’), Spanish (‘operación’), Estonian (‘tehing’), Finnish (‘liiketoimi’), French (‘opération’), Hungarian (‘művelet’), Italian (‘operazione’), Lithuanian (‘operacija’), Latvian (‘operācija’), Maltese (‘ħidma’), Polish (‘operacja’), Portuguese (‘operação’), Slovakian (‘operácia’), Slovene (‘operacija’) and Swedish (‘förfarande’) versions open-ended formulations, comparable to the German term ‘Vorgang’, are used throughout. 24 – Since the entry into force of Directive 2005/19, a cash payment within the meaning of Article 2(d) of Directive 90/434 may be effected also in consideration for the acquisition of further securities by means of which existing control of the acquired company is strengthened. The following observations apply also to such cases. 25 – The need to examine in their entirety all the circumstances of an individual case is emphasised also in Case C-43/00 Andersen og Jensen [2002] ECR I-379, paragraphs 25, 26 and 37, which is concerned likewise – though with regard to Article 2(c) and (i) – with the interpretation of Directive 90/434. 26 – See the first and second recitals in the preamble to Directive 90/434. 27– See the fourth recital in the preamble to Directive 90/434. 28 – To that effect, the Court’s consistent case-law; see only Case C-110/03 Belgium v Commission [2005] ECR I-2801, paragraph 30; Case C-248/04 Koninklijke Coöperatie Cosun [2006] ECR I-0000, paragraph 79; and Case C-255/02 Halifax and Others [2006] ECR I-1609, paragraph 72. 29 – Case C-376/02 ‘Goed Wonen’ [2005] ECR I-3445, paragraph 32, and Joined Cases C-181/04 to C-183/04 Elmeka [2006] ECR I-0000, paragraph 31; similarly Joined Cases C-387/02, C-391/02 and C-403/02 Berlusconi [2005] ECR I‑3565, paragraph 69, and Case C-13/05 Chacón Navas [2006] ECR I-6467, paragraph 56. 30 – Koninklijke Coöperatie Cosun (cited in footnote 28), paragraph 79; see also Case 326/85 Netherlands v Commission [1987] ECR 5091, paragraph 24; Case C‑236/02 Slob [2004] ECR I-1861, paragraph 37; and Case C-94/05 Emsland-Stärke [2006] ECR I-2619, paragraph 43. 31 – Fourth and ninth recitals in the preamble to Directive 90/434. 32 – Case C-28/95 [1997] ECR I‑4161, paragraph 36. 33 – The fact that an appraisal of the motives for an exchange of shares is conditional on a comprehensive assessment of the individual case is also emphasised in Leur-Bloem (cited in footnote 32), paragraphs 41 and 44. 34 – Simply for the sake of completeness, I will mention the fact that since the entry into force of Directive 2005/19 my conclusion correspondingly applies also as regards the acquisition of further securities by means of which the acquiring company’s existing control over the acquired company is strengthened. 35 – See above, point 52 and footnote 31 of this Opinion. 36 – On that issue, see immediately above, points 43 to 54 of this Opinion. 37 – Case C-212/97 Centros [1999] ECR I-1459, paragraph 24, with further references therein; Case C-456/04 Agip Petroli [2006] ECR I-3395, paragraph 20; Case C‑196/04 Cadbury SchweppesandCadbury SchweppesOverseas [2006] ECR I-0000, paragraph 35, and Halifax and Others (cited in footnote 28), paragraphs 68 and 69. 38 – To the same effect, with regard to taking advantage of the freedom of establishment (Article 43 EC), Centros, paragraph 27, and Cadbury Schweppes andCadbury SchweppesOverseas, paragraphs 36 to 38, (both cited in footnote 37). 39 – The parties appear to have been aware that a new – for them less advantageous – Danish-Irish double taxation convention was about to enter into force, thus by means of an exchange of shares followed by a subsequent profit distribution effected by the Irish company they had at that time an incentive to save tax (see points 29 and 30 of this Opinion). 40 – Leur-Bloem (cited in footnote 32), paragraph 47. 41 – Leur-Bloem (cited in footnote 32), paragraph 41. 42 – For consistent case-law to that effect, see, for example, Case C-456/03 Commission v Italy [2005] ECR I-5335, paragraph 51, and Case C-428/04 Commission v Austria [2006] ECR I-3325, paragraph 99. 43 – To the same effect, for example, Case 8/81 Becker [1982] ECR 53, paragraph 34. 44 – On the obligation of national courts to interpret national law in accordance with directives, see consistent case-law and, in particular, Case 14/83 Von Colson and Kamann [1984] ECR 1891, paragraph 26; Joined Cases C-397/01 to C-403/01 Pfeiffer and Others [2004] ECR I-8835, paragraphs 113 to 119, with further references; and Adeneler and Others (cited in footnote 21), paragraphs 108, 109 and 111. 45 – Thus it is recognised that the obligation to interpret national law in accordance with directives applies also as regards legal relationships in which a burden is necessarily imposed on a private individual: these are, first, horizontal legal relationships, that is to say, those between private individuals (see only Case C‑106/89 Marleasing [1990] ECR I-4135, paragraphs 6 and 8, and Case C-91/92 Faccini Dori [1994] ECR I-3325, paragraphs 20, 25 and 26), and, second, triangular situations (see Case C-201/02 Wells [2004] ECR I‑723, paragraph 57, with further references). To the same effect, see also my Opinion in Joined Cases C-387/02, C‑391/02 and C-403/02 Berlusconi and Others [2005] ECR I-3565, point 153. 46 – Joined Cases C-6/90 and C‑9/90 Francovich and Others [1991] ECR I-5357, paragraph 21; Case C-168/95 Arcaro [1996] ECR I-4705, paragraph 42; Case C‑102/02 Beuttenmüller [2004] ECR I-5405, paragraph 63; and Case C-184/04 Uudenkaupungin kaupunki [2006] ECR I-3039, paragraph 28. 47 – See, in particular, Pfeiffer and Others (cited in footnote 44), paragraph 108, with further references, and Berlusconi (cited in footnote 29), paragraph 73; emphasis added. 48 – In other respects, too, in matters which are exhaustively harmonised at Community level, national measures relating thereto must be assessed in the light of the provisions of that harmonising measure and not those of primary law (Case C‑324/99 DaimlerChrysler [2001] ECR I-9897, paragraph 32, and Case C‑210/03 Swedish Match [2004] ECR I-11893, paragraph 81). The possibility of reviewing the legality of secondary law in the light of higher norms of primary law in accordance with Article 220 EC et seq. remains, of course, at all times unaffected. 49 – On that matter, see, in particular, points 48 to 51 of this Opinion. 50 – Unclear on this point, Case C-144/04 Mangold [2005] ECR I-9981, paragraphs 74 to 77.