62021CJ0827_INF
Judgment of the Court (Ninth Chamber) of 27 April 2023 –Banca A v ANAFandPreşedintele ANAF (Application of the Merger Directive in a domestic situation)
(Case C‑827/21) (
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)
(Reference for a preliminary ruling – Directive 2009/133/EC – Article 7 – Merger by absorption – Purely domestic operation – Primacy of EU law outside the scope of EU law – None – Interpretation of EU law outside its scope – Jurisdiction of the Court to deliver preliminary rulings – Condition – EU law made applicable by national law directly and unconditionally)
1.
Questions referred for a preliminary ruling – Jurisdiction of the Court – Limits – System of taxation applicable to mergers, divisions, transfers of assets and exchanges of shares concerning companies of different Member States – Directive 2009/133 – Scope – Purely domestic merger of two undertakings, each having their registered office in the same Member State – Not included – Obligation of the national court to interpret in accordance with that directive the national rule applicable to those purely domestic operations – None
(Art. 267 TFEU; Council Directive 2009/133)
(see paragraphs 35-40, operative part 1)
2.
Questions referred for a preliminary ruling – Jurisdiction of the Court – Limits – Request for interpretation of provisions of EU law manifestly inapplicable in the dispute in the main proceedings – Directive 2009/133 – Provisions of EU law made applicable under national law directly and unconditionally to facts which do not come within the scope thereof – None – Lack of jurisdiction of the Court to provide that interpretation
(Art. 267 TFEU; Council Directive 2009/133)
(see paragraphs 43-56, operative part 2)
Operative part
1.
EU law does not require a national court to interpret, in accordance with Council Directive 2009/133/EC of 19 October 2009 on the common system of taxation applicable to mergers, divisions, partial divisions, transfers of assets and exchanges of shares concerning companies of different Member States and to the transfer of the registered office of an SE or SCE between Member States, a provision of national legislation applicable to a purely domestic merger of two undertakings, each having their registered office in the same Member State, as that operation does not come within the scope of that directive.
2.
The Court does not have jurisdiction to answer the questions referred regarding the interpretation of Directive 2009/133, as the facts of the dispute in the main proceedings do not come within its scope and, moreover, domestic law has not made it applicable to those facts directly and unconditionally.
(
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)	OJ C 165, 19.4.2022.