1990L0434 — EN — 01.01.1995 — 001.001 — 1
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►B COUNCIL DIRECTIVE
of 23July 1990
on the common system of taxation applicable to mergers, divisions, transfers of assets and
exchanges of shares concerning companies of different Member States
(90/434/EEC)
(OJ L 225, 20.8.1990, p. 1)
Amended by:
OfficialJournal
No page date
►A1 Act of Accession of Austria, Sweden and Finland C 241 21 29.8.1994
(adapted by CouncilDecision 95/1/EC, Euratom, ECSC) L 1 1 1.1.1995
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COUNCIL DIRECTIVE
of 23July 1990
on the common system of taxation applicable to mergers, divisions,
transfers of assets and exchanges of shares concerning companies of
different Member States
(90/434/EEC)
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic
Community, and in particular Article 100 thereof,
Having regard to the proposalof the Commission (1),
Having regard to the opinion of the European Parliament (2),
Having regard to the opinion of the Economic and SocialCommittee (3),
Whereas mergers, divisions, transfers of assets and exchanges of shares
concerning companies of different Member States may be necessary inorder to create within the Community conditions analogous to those ofan internalmarket and in order thus to ensure the establ ishment andeffective functioning of the common market; whereas such operationsought not to be hampered by restrictions, disadvantages or distortionsarising in particular from the tax provisions of the Member States;whereas to that end it is necessary to introduce with respect to suchoperations tax rules which are neutral from the point of view ofcompetition, in order to allow enterprises to adapt to the requirements ofthe common market, to increase their productivity and to improve theircompetitive strength at the international level;
Whereas tax provisions disadvantage such operations, in comparison
with those concerning companies of the same Member State; whereas itis necessary to remove such disadvantages;
Whereas it is not possible to attain this objective by an extension at the
Community level of the systems presently in force in the MemberStates, since differences between these systems tend to produce distor-tions; whereas only a common tax system is able to provide a satisfac-tory solution in this respect;
Whereas the common tax system ought to avoid the imposition of tax in
connection with mergers, divisions, transfers of assets or exchanges ofshares, while at the same time safeguarding the financial interests of theState of the transferring or acquired company;
Whereas in respect of mergers, divisions or transfers of assets, such
operations normally result either in the transformation of the transfer-ring company into a permanent establishment of the company receivingthe assets or in the assets becoming connected with a permanent estab-lishment of the latter company;
Whereas the system of deferralof the taxation of the capitalgains
relating to the assets transferred until their actual disposal, applied tosuch of those assets as are transferred to that permanent establishment,permits exemption from taxation of the corresponding capitalgains,while at the same time ensuring their ultimate taxation by the State ofthe transferring company at the date of their disposal;
Whereas it is also necessary to define the tax regime applicable to
certain provisions, reserves or losses of the transferring company and tosolve the tax problems occurring where one of the two companies has aholding in the capital of the other;
(1) OJ No C 39, 22. 3. 1969, p. 1.
(2) OJ No C 51, 29. 4. 1970, p. 12.
(3) OJ No C 100, 1. 8. 1969, p. 4.
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Whereas the allotment to the shareholders of the transferring companyof securities of the receiving or acquiring company would not in itselfgive rise to any taxation in the hands of such shareholders;
Whereas it is necessary to allow Member States the possibility of
refusing to apply this Directive where the merger, division, transfer ofassets or exchange of shares operation has as its objective tax evasion oravoidance or results in a company, whether or not it participates in theoperation, no longer fulfilling the conditions required for the representa-tion of employees in company organs,
HAS ADOPTED THIS DIRECTIVE:
TITLE I
General provisions
Article 1
Each Member State shall apply this Directive to mergers, divisions,
transfers of assets and exchanges of shares in which companies fromtwo or more Member States are involved.
Article 2
For the purposes of this Directive:
(a) ‘merger' shall mean an operation whereby:
— one or more companies, on being dissolved without going into
liquidation, transfer all their assets and liabilities to anotherexisting company in exchange for the issue to their shareholdersof securities respresenting the capitalof that other company,and, if applicable, a cash payment not exceeding 10 % of thenominalval ue, or, in the absence of a nominalval ue, of theaccounting par value of those securities,
— two or more companies, on being dissolved without going into
liquidation, transfer all their assets and liabilities to a companythat they form, in exchange for the issue to their shareholders ofsecurities representing the capitalof that new company, and, ifapplicable, a cash payment not exceeding 10 % of the nominalvalue, or in the absence of a nominal value, of the accountingpar value of those securities,
— a company, on being dissolved without going into liquidation,
transfers all its assets and liabilities to the company holding allthe securities representing its capital;
(b) ‘division' shall mean an operation whereby a company, on being
dissolved without going into liquidation, transfers all its assets andliabilities to two or more existing or new companies, in exchangefor the pro rata issue to its shareholders of securities representingthe capital of the companies receiving the assets and liabilities, and,if applicable, a cash payment not exceeding 10 % of the nominalvalue or, in the absence of a nominal value, of the accounting parvalue of those securities;
(c) ‘transfer of assets' shall mean an operation whereby a company
transfers without being dissolved all or one or more branches of itsactivity to another company in exchange for the transfer of securi-ties representing the capitalof the company receiving the transfer;
(d) ‘exchange of shares' shall mean an operation whereby a company
acquires a holding in the capital of another company such that itobtains a majority of the voting rights in that company in exchangefor the issue to the shareholders of the latter company, in exchangefor their securities, of securities representing the capitalof theformer company, and, if applicable, a cash payment not exceeding10 % of the nominalval ue or, in the absence of a nominalval ue, ofthe accounting par value of the securities issued in exchange;
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(e) ‘transferring company' shall mean the company transferring its
assets and liabilities or transferring all or one or more branches ofits activity;
(f) ‘receiving company' shall mean the company receiving the assets
and liabilities or all or one or more branches of the activity of thetransferring company;
(g) ‘acquired company' shall mean the company in which a holding is
acquired by another company by means of an exchange of securi-ties;
(h) ‘acquiring company' shall mean the company which acquires a
holding by means of an exchange of securities;
(i) ‘branch of activity' shall mean all the assets and liabilities of a
division of a company which from an organizationalpoint of viewconstitute an independent business, that is to say an entity capableof functioning by its own means.
Article 3
For the purposes of this Directive, ‘company from a Member State'
shall mean any company which:
(a) takes one of the forms listed in the Annex hereto;
(b) according to the tax laws of a Member State is considered to be
resident in that State for tax purposes and, under the terms of adouble taxation agreement concluded with a third State, is notconsidered to be resident for tax purposes outside the Community;
(c) moreover, is subject to one of the following taxes, without the
possibility of an option or of being exempt:
— impôt des sociétés/vennootschapsbelasting in Belgium,— selskabsskat in Denmark,— Körperschaftsteuer in the FederalRepubl ic of Germany,—φόρος εισοδήµατος νοµικών προσώπων κερδοσκοπικού
χαρακτήρα , in Greece,
— impuesto sobre sociedades in Spain,— impôt sur les sociétés in France,— corporation tax in Ireland,— imposta sul reddito delle persone giuridiche in Italy,— impôt sur le revenu des collectivités in Luxembourg,— vennootschapsbelasting in the Netherlands,— imposto sobre o rendimento das pessoas colectivas in Portugal,— corporation tax in the United Kingdom,
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— Körperschaftsteuer in Austria,— yhteisöjen tulovero/inkomstskatten för samfund in Finland,— statlig inkomstskatt in Sweden,
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or to any other tax which may be substituted for any of the above taxes.
TITLE II
Rules applicable to mergers, divisions and exchanges of shares
Article 4
1. A merger or division shall not give rise to any taxation of capital
gains calculated by reference to the difference between the real valuesof the assets and liabilities transferred and their values for tax purposes.The following expressions shall have the meanings assigned to them:
— value for tax purposes: the value on the basis of which any gain or
loss would have been computed for the purposes of tax upon theincome, profits or capitalgains of the transferring company if suchassets or liabilities had been sold at the time of the merger ordivision but independently of it,
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— transferred assets and liabilities: those assets and liabilities of the
transferring company which, in consequence of the merger or divi-sion, are effectively connected with a permanent establishment ofthe receiving company in the Member State of the transferringcompany and play a part in generating the profits or losses takeninto account for tax purposes.
2. The Member States shall make the application of paragraph 1
conditionalupon the receiving company’s computing any new deprecia-tion and any gains or losses in respect of the assets and liabilitiestransferred according to the rules that would have applied to the trans-ferring company or companies if the merger or division had not takenplace.
3. Where, under the laws of the Member State of the transferring
company, the receiving company is entitled to have any new deprecia-tion or any gains or losses in respect of the assets and liabilitiestransferred computed on a basis different from that set out in paragraph2, paragraph 1 shall not apply to the assets and liabilities in respect ofwhich that option is exercised.
Article 5
The Member States shall take the necessary measures to ensure that,
where provisions or reserves properly constituted by the transferringcompany are partly or wholly exempt from tax and are not derived frompermanent establishments abroad, such provisions or reserves may becarried over, with the same tax exemption, by the permanent establish-ments of the receiving company which are situated in the Member Stateof the transferring company, the receiving company thereby assumingthe rights and obligations of the transferring company.
Article 6
To the extent that, if the operations referred to in Article 1 were effected
between companies from the Member State of the transferring company,the Member State would apply provisions allowing the receivingcompany to take over the losses of the transferring company which hadnot yet been exhausted for tax purposes, it shall extend those provisionsto cover the take-over of such losses by the receiving company’spermanent establishments situated within its territory.
Article 7
1. Where the receiving company has a holding in the capital of the
transferring company, any gains accruing to the receiving company onthe cancellation of its holding shall not be liable to any taxation.
2. The Member States may derogate from paragraph 1 where the
receiving company’s holding in the capital of the transferring companydoes not exceed 25 %.
Article 8
1. On a merger, division or exchange of shares, the allotment of
securities representing the capitalof the receiving or acquiring companyto a shareholder of the transferring or acquired company in exchangefor securities representing the capital of the latter company shall not, ofitself, give rise to any taxation of the income, profits or capital gains ofthat shareholder.
2. The Member States shall make the application of paragraph 1
conditionalupon the sharehol der’s not attributing to the securitiesreceived a value for tax purposes higher than the securities exchangedhad immediately before the merger, division or exchange.
The application of paragraph 1 shall not prevent the Member States
from taxing the gain arising out of the subsequent transfer of securitiesreceived in the same way as the gain arising out of the transfer ofsecurities existing before the acquisition.
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In this paragraph the expression ‘value for tax purposes' means the
amount on the basis of which any gain or loss would be computed forthe purposes of tax upon the income, profits or capitalgains of ashareholder of the company.
3. Where, under the law of the Member State in which he is resident,
a shareholder may opt for tax treatment different from that set out inparagraph 2, paragraph 1 shall not apply to the securities in respect ofwhich such an option is exercised.
4. Paragraphs 1, 2 and 3 shall not prevent a Member State from
taking into account when taxing shareholders any cash payment thatmay be made on the merger, division or exchange.
TITLE III
Rules applicable to transfers of assets.
Article 9
The provisions of Articles 4, 5 and 6 shall apply to transfers of assets.
TITLE IV
Special case of the transfer of a permanent establishment
Article 10
1. Where the assets transferred in a merger, a division or a transfer of
assets include a permanent establishment of the transferring companywhich is situated in a Member State other than that of the transferringcompany, the latter State shall renounce any right to tax that permanentestablishment. However, the State of the transferring company mayreinstate in the taxable profits of that company such losses of thepermanent establishment as may previously have been set off againstthe taxable profits of the company in that State and which have not beenrecovered. The State in which the permanent establishment is situatedand the State of the receiving company shall apply the provisions of thisDirective to such a transfer as if the former State were the State of thetransferring company.
2. By way of derogation from paragraph 1, where the Member State
of the transferring company applies a system of taxing world-wideprofits, that Member State shall have the right to tax any profits orcapital gains of the permanent establishment resulting from the merger,division or transfer of assets, on condition that it gives relief for the taxthat, but for the provisions of this Directive, would have been chargedon those profits or capitalgains in the Member State in which thatpermanent establishment is situated, in the same way and in the sameamount as it would have done if that tax had actually been charged andpaid.
TITLE V
Final provisions
Article 11
1. A Member State may refuse to apply or withdraw the benefit of all
or any part of the provisions of Titles II, III and IV where it appears thatthe merger, division, transfer of assets or exchange of shares:
(a) has as its principalobjective or as one of its principalobjectives tax
evasion or tax avoidance; the fact that one of the operations referredto in Article 1 is not carried out for valid commercial reasons suchas the restructuring or rationalization of the activities of the compa-nies participating in the operation may constitute a presumption thatthe operation has tax evasion or tax avoidance as its principalobjective or as one of its principalobjectives;
(b) results in a company, whether participating in the operation or not,
no longer fulfilling the necessary conditions for the representation
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of employees on company organs according to the arrangementswhich were in force prior to that operation.
2. Paragraph 1 (b) shall apply as long as and to the extent that no
Community law provisions containing equivalent rules on representa-tion of employees on company organs are applicable to the companiescovered by this Directive.
Article 12
1. Member States shall bring into force the laws, regulations and
administrative provisions necessary to comply with this Directive notlater than 1 January 1992 and shall forthwith inform the Commissionthereof.
2. By way of derogation from paragraph 1, the Portuguese Republic
may delay the application of the provisions concerning transfers ofassets and exchanges of shares until1 January 1993.
3. Member States shall communicate to the Commission the texts of
the main provisions of national law which they adopt in the fieldcovered by this Directive.
Article 13
This Directive is addressed to the Member States.
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ANNEX
List of companies referred to in Article 3(a)
(a) companies under Belgian law known as ‘société anonyme' / ‘naamloze
vennootschap', ‘société en commandite par actions' / ‘commanditairevennootschap op aandelen', ‘société privée à responsabilité limitée' /‘besloten vennootschap met beperkte aansprakelijkheid' and those public lawbodies that operate under private law;
(b) companies under Danish law known as: ‘aktieselskab', ‘anpartsselskab';
(c) companies under German law known as: ‘Aktiengesellschaf', ‘Kommandit-
gesellschaft auf Aktien', ‘Gesellschaft mit beschränkter Haftung', ‘bergrecht-liche Gewerkschaft';
(d) companies under Greek law known as: ‘ ανώνυµη εταιρεία ';
(e) companies under Spanish law known as: ‘sociedad anónima', ‘sociedad
comanditaria por acciones', ‘sociedad de responsabilidad limitada' and thosepublic law bodies which operate under private law;
(f) companies under French law known as ‘société anonyme', ‘société en
commandite par actions', ‘société à responsabilité limitée' and industrial andcommercial public establishments and undertakings;
(g) the companies in Irish law known as public companies limited by shares or
by guarantee, private companies limited by shares or by guarantee, bodiesregistered under the Industrialand Provident Societies Acts or buil dingsocieties registered under the Building Societies Acts;
(h) companies under Italian law known as ‘società per azioni', ‘società in
accomandita per azioni', ‘società a responsabilità limitata', and public andprivate entities carrying on industrialand commercialactivities;
(i) companies under Luxembourg law known as ‘société anonyme', ‘société en
commandite par actions', ‘société à responsabilité limitée';
(j) companies under Dutch law known as: ‘naamloze vennootschap', ‘besloten
vennootschap met beperkte aansprakelijkheid';
(k) commercialcompanies or civill aw companies having a commercialform as
wel las other l egalpersons carrying on commercialor industrialactivities,which are incorporated in accordance with Portuguese law;
(l) companies incorporated under the law of the United Kingdom;
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m) companies under Austrian law known as ‘Aktiengesellschaft', ‘Gesellschaft
mit beschränkter Haftung';
n) companies under Finnish law known as ‘osakeyhtiö/aktiebolag', ‘osuuskunta/
andelslag', ‘säästöpankki/sparbank' et ‘vakuutusyhtiö/försäkringsbolag';
o) companies under Swedish law known as ‘aktiebolag', ‘bankaktiebolag',
‘försäkringsaktiebolag'.