Modehuis A. Zwijnenburg BV v Staatssecretaris van Financiën.
Date: 2010-05-20
33. According to the case-law of the Court, where, in regulating purely internal situations, domestic legislation adopts the same solutions as those adopted in European Union law in order, in particular, to avoid discrimination against nationals of the Member State in question or any distortion of competition, it is clearly in the European Union’s interest that, in order to forestall future differences of interpretation, provisions or concepts taken from European Union law should be interpreted uniformly, irrespective of the circumstances in which they are to apply (see Case C-28/95 Leur-Bloem  [1997] ECR I-4161, paragraph 32, and Case C-43/00 Andersen og Jensen  [2002] ECR I-379, paragraph 18).
34. Moreover, it is for the national court alone to assess the precise scope of that reference to European Union law, the jurisdiction of the Court being confined to considering provisions of European Union law only ( Leur-Bloem , paragraph 33).
38. So far as concerns the objective pursued by Directive 90/434, the Court has already stated that the aim of that directive is, according to the first recital in its preamble, to introduce tax rules which are neutral from the point of view of competition in order to allow undertakings to adapt themselves to the requirements of the common market, to increase their productivity and to improve their competitive strength at the international level. That same recital also states that mergers, divisions, transfers of assets and exchanges of shares concerning companies of different Member States ought not to be hampered by restrictions, disadvantages or distortions arising from the tax provisions of the Member States ( Leur-Bloem , paragraph 45).
39. More specifically, the objective of Directive 90/434 is to eliminate fiscal barriers to cross‑border restructuring of undertakings, by ensuring that any increases in the value of shares are not taxed until their actual disposal (Case C‑321/05 Kofoed  [2007] ECR I‑5795, paragraph 32, and Case C‑285/07 A.T . [2008] ECR I­­‑9329, paragraph 28).
41. The Court has also held that the common tax rules laid down by Directive 90/434, which cover different tax advantages, apply without distinction to all mergers, divisions, transfers of assets or exchanges of shares irrespective of the reasons, whether financial, economic or simply fiscal, for those operations ( Leur-Bloem , paragraph 36, and Kofoed , paragraph 30).
42. It follows that the determination of which transactions are eligible to benefit from the favourable arrangements introduced by Directive 90/434 is not dependent on financial, economic or fiscal considerations. By contrast, the reasons for the proposed transaction are important in the implementation of the option provided for in Article 11(1) of that directive.
43. Thus, under Article 11(1)(a) of Directive 90/434, Member States may refuse to apply, or may withdraw the benefit of, all or any part of the provisions of that directive, inter alia, where the exchange of shares has tax evasion or tax avoidance as its principal objective or as one of its principal objectives. That same provision also provides that the fact that the operation is not carried out for valid commercial reasons, such as the restructuring or rationalisation of the activities of the companies participating in the operation, may constitute a presumption that the operation has such an objective ( Leur-Bloem , paragraphs 38 and 39, and Kofoed , paragraph 37).
44. In order to determine whether the planned operation has such an objective, the competent national authorities cannot confine themselves to applying predetermined general criteria but must subject each particular case to a general examination ( Leur-Bloem , paragraph 41).
45. It is only by way of exception and in specific cases that Member States may, pursuant to Article 11(1)(a) of Directive 90/434, refuse to apply or withdraw the benefit of all or any part of the provisions of that directive ( Kofoed , paragraph 37, and A.T ., paragraph 31).
46. Consequently, Article 11(1)(a) of Directive 90/434, as a provision setting out an exception, must be subject to strict interpretation, regard being had to its wording, purpose and context.