Case C-874/24: Action brought on 16 December 2024 – European Commission v Kingdom of Spain
Date: 2024-12-16
Institutions: Court of Justice
Subjects: demerger, infringement of EU law, national implementing measure, shareholder, shareholding, tax law, tax system








C_202500712EN.000101.fmx.xml












Official Journal of the European Union


EN
C series













C/2025/712


10.2.2025






Action brought on 16 December 2024 – European Commission v Kingdom of Spain


(Case C-874/24)

(C/2025/712)
Language of the case: Spanish

Parties


Applicant: European Commission (represented by: S. Pardo Quintillán and A. Ferrand, acting as Agents)

Defendant: Kingdom of Spain

Form of order sought

The applicant claims that the Court of Justice should:






—


declare that, by requiring that the system of deferral of taxation laid down in 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 (1) is to apply only to total divisions in which the assets and liabilities transferred constitute a branch of activity, where the shareholders of the company being divided do not receive, in all of the companies receiving the assets and liabilities, the same proportion of shares as they held in the company being divided, the Kingdom of Spain has failed to fulfil its obligations under Article 2(b) and Article 4(1) of Directive 2009/133/EC;










—


order the Kingdom of Spain to pay the costs.





Pleas in law and main arguments

The infringement proceedings against the Kingdom of Spain concern the Spanish legislation transposing Council Directive 2009/133/EC. The European Commission submits that that national legislation infringes Directive 2009/133/EC by imposing an additional condition, not provided for by that directive, for applying the system of deferral of taxation laid down by Directive 2009/133/EC in the case of divisions.
In particular, under Directive 2009/133/EC the system of deferral of taxation laid down in Article 4(1) thereof is applicable in the case of a division of a company, where, in accordance with Article 2(b), the company is dissolved without going into liquidation by means of its division and the company being divided transfers all its assets and liabilities to two or more existing or new companies ‘in exchange for the pro rata issue’, to the shareholders of the company being divided, of shares in the companies receiving the assets and liabilities. By contrast, Article 76.2(2) of the Ley 27/2014 del Impuesto sobre Sociedades (Law 27/2014 on Corporation Tax) in principle requires, for the application of the system of deferral of taxation, that companies that held shares in the company being divided keep the same proportion of shares in each acquiring entity; if that is not the case, the system of deferral of taxation applies only where the assets and liabilities acquired by the acquiring entities constitute a branch of activity.


(1)  
            OJ L 310, 25.11.2009, p. 34.


ELI: http://data.europa.eu/eli/C/2025/712/oj
ISSN 1977-091X (electronic edition)