Foggia - Sociedade Gestora de Participações Sociais SA v Secretário de Estado dos Assuntos Fiscais.
Date: 2011-11-10
21. According to the Court’s settled case-law, where, in regulating purely internal situations, domestic legislation adopts the same solutions as those adopted in EU 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 EU law should be interpreted uniformly, irrespective of the circumstances in which they are to apply (Case C‑28/95 Leur-Bloem [1997] ECR I‑4161, paragraph 32; Case C‑43/00 Andersen og Jensen [2002] ECR I‑379, paragraph 18; and Case C‑352/08 Modehuis A. Zwijnenburg [2010] ECR I‑4303, paragraph 33).
22. Moreover, it is for the national court alone to assess the precise scope of that reference to EU law, the jurisdiction of the Court being confined to considering and interpreting provisions of that law only ( Leur-Bloem , paragraph 33, and Modehuis A. Zwijnenburg , paragraph 34).
25. In accordance with the Court’s settled case-law, in the context of the cooperation between the Court of Justice and the national courts established by Article 267 TFEU, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case, both the need of a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of EU law, the Court is in principle bound to give a ruling (see, inter alia, Leur-Bloem , paragraph 24, Case C‑48/07 Les Vergers du Vieux Tauves [2008] ECR I‑10627, paragraph 16, and Joined Cases C‑78/08 to C‑80/08 Paint Graphos and Others [2011] ECR I‑0000, paragraph 30).
26. As a matter of fact, questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. The Court may refuse to rule on a question referred for a preliminary ruling from a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see Joined Cases C‑222/05 to C‑225/05 van der Weerd and Others  [2007] ECR I‑4233, paragraph 22; Les Vergers du Vieux Tauves , paragraph 17; and Paint Graphos and Others , paragraph 31).
29. However, with regard to the wording of the second question, it should be noted that it is settled case-law that, although the Court may not, in proceedings under Article 267 TFEU, rule upon the compatibility of a provision of domestic law with EU law or interpret domestic legislation or regulations, it may nevertheless provide the national court with an interpretation of EU law on all such points as may enable that court to determine the issue of compatibility for the purposes of the case before it (see, inter alia, Case C‑292/92 Hünermund and Others  [1993] ECR I‑6787, paragraph 8, and Joined Cases C‑338/04, C‑359/04 and C‑360/04 Placanica and Others  [2007] ECR I‑1891, paragraph 36).
31. It must be emphasised at the outset that the common tax rules laid down by Directive 90/434 cover different tax advantages and 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 Leur-Bloem , paragraph 36, and Case C‑321/05 Kofoed [2007] ECR I‑5795, paragraph 30).
32. The reasons for the proposed transaction are important, however, in giving effect to the option given to Member States, under Article 11(1) of that directive, not to grant the benefit of the provisions of that directive ( Modehuis A. Zwijnenburg , paragraph 42).
33. In particular, under Article 11(1)(a) of Directive 90/434, as an exception and in specific cases 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 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, and Kofoed , paragraph 37).
34. With regard to ‘valid commercial reasons’ within the meaning of that Article 11(1)(a), the Court has already had occasion to state that it is clear from the wording and aims of Article 11, as it is from those of Directive 90/434 in general, that the concept involves more than the attainment of a purely fiscal advantage. A merger by way of exchange of shares having only such an aim cannot therefore constitute a valid commercial reason within the meaning of that provision ( Leur-Bloem , paragraph 47).
36. Accordingly, under Article 11(1)(a) of Directive 90/434, where the merger operation has the sole aim of obtaining a tax advantage and is not carried out for valid commercial reasons, such a finding may constitute a presumption that the operation has tax evasion or avoidance as one of its principal objectives.
37. It follows from the case-law of the Court that, in order to determine whether the planned operation has such an objective, the competent national authorities may not confine themselves to applying predetermined general criteria but must subject each particular case to a general examination of the operation in question. Indeed, the laying down of a general rule automatically excluding certain categories of operations from the tax advantage, without account being taken of whether or not there is actually tax evasion or avoidance, would go further than is necessary for preventing such tax evasion or avoidance and would undermine the aim pursued by Directive 90/434 ( Leur-Bloem , paragraphs 41 and 44).
44. For the purpose of answering that question, it should be stated that Article 11(1)(a) of Directive 90/434, as it constitutes an exception to the tax rules established by Directive 90/434, must be subject to strict interpretation, regard being had to its wording, purpose and context ( Modehuis A. Zwijnenburg , paragraph 46).
46. As the Court has already held in paragraph 47 of Leur-Bloem , the concepts of restructuring and rationalisation must therefore be understood as involving more than the attainment of a purely fiscal advantage and any operation of restructuring and rationalisation having only such an aim cannot therefore constitute a valid commercial reason within the meaning of that provision.
50. Furthermore, it should be noted that Article 11(1)(a) of Directive 90/434 reflects the general principle of EU law that abuse of rights is prohibited. The application of EU legislation may not 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 that 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; and Kofoed , paragraph 38).