Hans Markus Kofoed v Skatteministeriet.
Date: 2007-07-05
30. Likewise, the Court has previously had the opportunity to state that it is clear from Article 2(d) and from the general scheme of Directive 90/434 that the common tax rules which it lays down, 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 (see Case C‑28/95 Leur-Bloem  [1997] ECR I-4161, paragraph 36).
32. That interpretation is supported by the purpose behind Directive 90/434, which is to eliminate fiscal barriers to cross-border restructuring of undertakings, by ensuring that any increases in the value of shares are not taxed before they are actually realised and by preventing operations involving high levels of capital gains realised on exchanges of shares from being exempt from income tax simply because they are part of a restructuring operation.
37. Under Article 11(1)(a) of Directive 90/434, by way of exception and in specific cases, Member States may refuse to apply or 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 (see, to that effect, Leur-Bloem , paragraphs 38 and 39).
38. Thus, Article 11(1)(a) of Directive 90/434 reflects the general Community law principle that abuse of rights is prohibited. Individuals must not improperly or fraudulently take advantage of provisions of Community law. The application of Community legislation cannot be extended to cover abusive practices, that is to say, transactions carried out not in the context of normal commercial operations, but solely for the purpose of wrongfully obtaining advantages provided for by Community law (see, to that effect, Case C‑212/97 Centros  [1999] ECR I-1459, paragraph 24; Case C‑255/02 Halifax and Others  [2006] ECR I-1609, paragraphs 68 and 69; Case C‑456/04 Agip Petroli  [2006] ECR I-3395, paragraphs 19 and 20; and Case C‑196/04 Cadbury Schweppes and Cadbury Schweppes Overseas  [2006] ECR I-7995, paragraph 35).
41. In that regard, it should be borne in mind that, according to Articles 10 EC and 249 EC, each of the Member States to which a directive is addressed is obliged to adopt, within the framework of its national legal system, all the measures necessary to ensure that the directive is fully effective, in accordance with the objective that it pursues (see, inter alia, the judgment of 10 March 2005 in Case C‑531/03 Commission  v Germany , not published in the ECR, paragraph 16, and Case C‑456/03 Commission  v Italy  [2005] ECR I-5335, paragraph 50).
42. Moreover, the principle of legal certainty precludes directives from being able by themselves to create obligations for individuals. Directives cannot therefore be relied upon per se by the Member State as against individuals (see, inter alia, Case 14/86 Pretore di Salò  [1987] ECR 2545, paragraphs 19 and 20; Case 80/86 Kolpinghuis Nijmegen  [1987] ECR 3969, paragraphs 9 and 13; Case C‑168/95 Arcaro  [1996] ECR I‑4705, paragraphs 36 and 37; and Joined Cases C‑387/02, C‑391/02 and C‑403/02 Berlusconi and Others  [2005] ECR I‑3565, paragraphs 73 and 74).
43. However, the Court observes, first, that, according to the actual wording of the third paragraph of Article 249 EC, Member States may choose the form and methods for implementing directives which best ensure the result to be achieved by those directives (see, to that effect, Commission  v Italy , paragraph 51).
44. Accordingly, provided that the legal situation arising from the national transposition measures is sufficiently precise and clear and that the persons concerned are put in a position to know the full extent of their rights and obligations, transposition of a directive into national law does not necessarily require legislative action in each Member State. Likewise, as noted by the Advocate General in point 62 of her Opinion, the transposition of a directive may, depending on its content, be achieved through a general legal context, so that a formal and express re-enactment of the provisions of the directive in specific national provisions is not necessary (see Commission  v Italy , paragraph 51, and Case C‑428/04 Commission  v Austria  [2006] ECR I‑3325, paragraph 99).
45. The Court notes, second, that all authorities of a Member State, in applying national law, are required to interpret it as far as possible in the light of the wording and purpose of the Community directives in order to achieve the result pursued by those directives. Moreover, although it is true that the requirement of a directive-compliant interpretation cannot reach the point where a directive, by itself and without national implementing legislation, may create obligations for individuals or determine or aggravate the liability in criminal law of persons who act in contravention of its provisions, a Member State may nevertheless, in principle, impose a directive-compliant interpretation of national law on individuals (see, to that effect, Kolpinghuis Nijmegen , paragraphs 12 to 14, and Arcaro , paragraphs 41 and 42).
46. As noted by the Advocate General in point 63 of her Opinion, in the main proceedings it is therefore for the national court to ascertain whether there is, in Danish law, a provision or general principle prohibiting abuse of rights or other provisions on tax evasion or tax avoidance which might be interpreted in accordance with Article 11(1)(a) of Directive 90/434 and thereby justify taxation of the exchange of shares in question (see also Case 8/81 Becker  [1982] ECR 53, paragraph 34).
47. If so, it will be for the national court to determine whether the conditions for the application of those national provisions are satisfied in the main proceedings.