CELEX: C1997/271/03
Language: en
Date: 1997-09-06 00:00:00
Title: JUDGMENT OF THE COURT of 17 July 1997 in Case C-28/95 (reference for a preliminary ruling from the Gerechtshof, Amsterdam): A. Leur-Bloem v. Inspecteur der Belastingdienst/Ondernemingen Amsterdam 2 (Article 177 - Jurisdiction of the Court - National legislation adopting Community provisions - Transposition - Directive 90/434/EEC - Merger by exchange of shares - Tax evasion or avoidance)

C 271 /2                 EN                 Official Journal of the European Communities                                        6 . 9 . 97
                JUDGMENT OF THE COURT                                                   JUDGMENT OF THE COURT
                          ( Fifth Chamber )                                                     of 17 July 1997
                           of 10 July 1997                             in Case C-28/95 (reference for a preliminary ruling from
                                                                       the Gerechtshof, Amsterdam ): A. Leur-Bloem v. Inspecteur
in Case C-261/95 (reference for a preliminary ruling from                  der Belastingdienst/Ondernemingen Amsterdam 2 (')
the Pretura Circondariale, Frosinone ): Rosalba Palmisani              (Article 177 — Jurisdiction of the Court — National
   v. Istituto Nazionale della Previdenza Sociale (INPS ) (M           legislation       adopting     Community provisions              —
(Social policy — Protection of employees in the event of               Transposition — Directive 90/434/EEC — Merger by
                                                                              exchange of shares — Tax evasion or avoidance)
the insolvency of their employer — Council Directive 80/
987/EEC — Liability of a Member State arising from                                               ( 97/C 271 /03 )
belated transposition of a directive — Adequate reparation
                        — Limitation period)
                                                                                         (Language of the case: Dutch)
                            ( 97/C 271 /02
                                                                         (Provisional translation; the definitive translation will be
                 (Language of the case: Italian)                                  published in the European Court Reports)
                                                                       In Case C-28/95 : reference to the Court under Article 177
                                                                       of the EC Treaty from the Gerechtshof te Amsterdam, for
  (Provisional translation; the definitive translation will be         a preliminary ruling in the proceedings pending before
           published in the European Court Reports)                    that court between A. Leur-Bloem and Inspecteur der
                                                                       Belastingdienst/Ondernemingen Amsterdam 2 — on the
                                                                       interpretation of Articles 2 ( d ) and 11 ( 1 ) ( a ) of Council
                                                                       Directive 90/434/EEC of 23 July 1990 on the common
In Case C-261 /95 : reference to the Court under Article 177           system of taxation applicable to mergers, divisions,
of the EC Treaty from the Pretura Circondariale (District              transfers of assets and exchanges of shares concerning
Magistrate's Court), Frosinone ( Italy ), for a preliminary            companies of different Member States ( OJ L 225 , 20 . 8 .
ruling in the proceedings pending before that court                    1990, p. 1 ) — the Court, composed of: G. C. Rodriguez
between Rosalba Palmisani and Istituto Nazionale della                 Iglesias, President, G. F. Mancini, J. C. Moitinho de
Previdenza Sociale ( INPS ) — on the interpretation of                 Almeida, J. L. Murray and L. Sevon ( Presidents of
Article 5 of the EC Treaty and of the principle of State               Chambers ), C. N. Kakouris, P. J. G. Kapteyn, C.
liability for loss or damage caused to individuals by a                Gulmann, D. A. O. Edward, J. -P. Puissochet, G. Hirsch, P.
breach of Community law attributable to the State — the                Jann ( Rapporteur) and H. Ragnemalm, Judges; F. G.
Court ( Fifth Chamber ), composed of: J. C. Moitinho de                Jacobs, Advocate General; H. A. Riihl, Principal
Almeida, President of the Chamber, L. Sevon, D. A. O.                  Administrator, for the Registrar, has given a judgment on
Edward, P. Jann and M. Wathelet ( Rapporteur), Judges;                 17 July 1997, in which it has ruled :
G. Cosmas, Advocate General ; L. Hewlett, Administrator,
for the Registrar, has given a judgment on 10 July 1997,
in which it has ruled :                                                1 . The Court of Justice has jurisdiction under Article 177
                                                                            of the EC Treaty to interpret Community law where
                                                                            the situation in question is not governed directly by
                                                                            Community law but the national legislature, in
Community law, as it stands at present, does not preclude                   transposing the provisions of a directive into domestic
a Member State from requiring any action for reparation                     law, has chosen to apply the same treatment to purely
of the loss or damage sustained as a result of the belated                  internal situations and to those governed by the
transposition of Council Directive 80/987/EEC of                            directive, so that it has aligned its domestic legislation
20 October 1980 on the approximation of the laws of the                     to Community law.
Member States relating to the protection of employees in
the event of the insolvency of their employer to be
brought within a limitation period of one year from the                2 . ( a ) Article 2 (d) of Council Directive 90/434/EEC of
date of its transposition into national law, provided that                       23 July 1990, on the common system of taxation
that procedural requirement is no less favourable than                           applicable to mergers, divisions, transfers of assets
procedural requirements in respect of similar actions of a                       and exchanges of shares concerning companies of
domestic nature.                                                                 different Member States, does not require the
                                                                                 acquiring company, within the meaning of
                                                                                 Article 2 (h) of the Directive, to carry on business
(') OJ C 268 , 14 . 10 . 1995 .                                                  itself or there to be a permanent merger, from the
                                                                                 financial and economic point of view, of the
                                                                                 business of two companies into a single unit.
                                                                                 Similarly, the fact that the same natural person
                                                                                 who was the sole shareholder and director of the
 ---pagebreak--- 6 . 9 . 97               EN                    Official Journal of the European Communities                                     C 271 /3
            acquiring companies becomes the sole shareholder              ( Finance Court, Hesse ), Kassel ( Germany) for a
            and director of the acquiring company does not                preliminary ruling in the proceedings pending before that
            prevent the operation in question from being                  court between Bernd Giloy and Hauptzollamt Frankfurt
            treated as a merger by exchange of shares.                    am Main-Ost — on the interpretation of Article 244 of
                                                                          Council Regulation ( EEC ) No 2913/92 of 12 October
      ( b ) Article 11 of Directive 90/434 is to be interpreted           1992 establishing the Community Customs Code ( OJ
            as meaning that in determining whether the                    L 302, 19 . 10 . 1992, p. 1 ) — the Court, composed of:
            planned operation has as its principal objective or           G. C. Rodriguez Iglesias, President, G. F. Mancini, J. C.
            as one of its principal objectives tax evasion or tax         Moitinho de Almeida, J. L. Murray and L. Sevon
            avoidance, the competent national authorities must            ( Presidents of Chambers ), C. N. Kakouris, P. J. G.
            carry out a general examination of the operation              Kapteyn, C. Gulmann, D. A. O. Edward ( Rapporteur ), J.­
            in each particular case. Such an examination must             P. Puissochet, G. Hirsch, P. Jann and H. Ragnemalm,
            be open to judicial review. Under Article 11 (1 ) (a)         Judges; F. G. Jacobs, Advocate General; H. A. Riihl,
            of Directive 90/434, the Member States may                    Principal Administrator, for the Registrar, has given a
            stipulate that the fact that the planned operation is         judgment on 17 July 1997, in which it has ruled :
            not carried out for valid commercial reasons
            constitutes a presumption of tax evasion or tax               1 . On a proper construction of the second paragraph of
            avoidance. It is for the Member States, observing                  Article 244 of Council Regulation (EEC) No 2913/92
            the principle of proportionality, to determine the                 of 12 October 1992 establishing the Community
            internal procedures necessary for this purpose.                    Customs Code, the customs authorities should suspend
            However, the laying down of a general rule                         implementation of a disputed customs decision in
            automatically excluding certain categories of                      whole or in part where one only of the two conditions
            operations from the tax advantage, on the basis of                 mentioned in that provision is fulfilled, so that
            criteria such as those mentioned in the second
                                                                               suspension must be granted where there is a risk of
            answer under (a), whether or not there is actually                 irreparable damage for the person concerned. It is not
            tax evasion or tax avoidance, would go further                     necessary that there be reason to believe that the
            than is necessary for preventing such tax evasion                  disputed decision is inconsistent with customs
            or such tax avoidance and would undermine the                      legislation.
            aim pursued by Directive 90/434.
                                                                          2 . The fact that irreparable damage may be suffered by
      ( c ) 'Valid commercial reasons ', within the meaning of
                                                                               the person concerned in the event of immediate
            Article 11 of Directive 90/434, must be interpreted
                                                                               implementation of a disputed customs decision does
            as involving more than the attainment of a purely
                                                                               not prevent the customs authorities from making
            fiscal advantage such as horizontal off-setting of
            losses.
                                                                               suspension of its implementation conditional upon the
                                                                               lodging of security. However, if the requirement to
                                                                               lodge security is likely, owing to the debtor's
(') OJ C 74 , 25 . 3 . 1995 .                                                  circumstances, to cause serious economic or social
                                                                               difficulties, the customs authorities are free to decide
                                                                               not to require such security to be lodged.
                                                                          3 . Making suspension of implementation of a disputed
                                                                               customs decision subject to the lodging of security
                  JUDGMENT OF THE COURT                                        would be likely to cause serious economic or social
                           of 17 July 1997                                     difficulties for a debtor who does not have sufficient
                                                                               means to provide such security.
in Case C-130/95 ( reference for a preliminary ruling from
the Hessisches Finanzgericht, Kassel ): Bernd Giloy v.
              Hauptzollamt Frankfurt am Main-Ost (')                      4 . Where suspension of implementation of a disputed
                                                                               customs decision is subject, under the third paragraph
(Article 177 — Jurisdiction of the Court — National                            of Article 244 of Regulation No 2913/92, to the
legislation adopting Community provisions — Community                          lodging of security, the amount of that security must
Customs Code — Appeal — Suspension of a customs                                be set at the precise amount of the debt or, if this
                  decision — Provision of security)                            cannot be established with certainty, at the maximum
                                                                               amount of the debt which has been, or may be,
                              ( 97/C 271 /04 )
                                                                               incurred, unless the requirement to provide security is
                                                                               likely to cause the debtor serious economic or social
                   (Language of the case: German)                              difficulties; if that is the case, the amount of security
                                                                               may be set, taking into account the debtor's financial
                                                                               situation, at an amount less than the total amount of
  (Provisional translation; the definitive translation will be                 the debt concerned.
             published in the European Court Reports)
                                                                          (') OJ C 159 , 24 . 6 . 1995 .
In Case C-130/95 : reference to the Court under Article 177
of the EC Treaty from the Hessisches Finanzgericht