AQ and DN v Ministre de l'Action et des Comptes publics.
Date: 2019-09-18
28


It must be noted that the Court has found requests for preliminary rulings to be admissible in cases in which, although the facts of the main proceedings were outside the direct scope of EU law, the provisions of EU law had been made applicable by national legislation, which, in dealing with situations confined in all respects within a single Member State, had followed the same approach as that provided for by EU law (judgment of 22 March 2018, Jacob and Lassus, C‑327/16 and C‑421/16, EU:C:2018:210, paragraph 33 and the case-law cited).
29


In addition, the Court has held that such requests are admissible also in cases where the provision of EU law of which an interpretation is requested is to apply, in the context of national law, in situations different from those provided for by the corresponding EU law provision (see, to that effect, judgments of 11 October 2001, Adam, C‑267/99, EU:C:2001:534, paragraphs 27 to 29, and of 7 November 2018, C and A, C‑257/17, EU:C:2018:876, paragraph 33 and the case-law cited).
30


In such circumstances, it is clearly in the interest of the European Union 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 (judgments of 22 March 2018, Jacob and Lassus, C‑327/16 and C‑421/16, EU:C:2018:210, paragraph 34 and the case-law cited, and of 7 November 2018, C and A, C‑257/17, EU:C:2018:876, paragraph 32 and the case-law cited).
40


In that regard, the Court has previously held that, although Article 8(1) of the Merger Directive, by providing that an exchange of securities cannot by itself give rise to the taxation of the capital gain resulting from that transaction, ensures the tax neutrality of such a transaction, the purpose of that fiscal neutrality is not, however, to avoid such a capital gain being taxed by the Member States with fiscal competence in respect of that gain, but only to prohibit them from considering that exchange as the chargeable event for the purposes of taxation (see, to that effect, judgment of 22 March 2018, Jacob and Lassus, C‑327/16 and C‑421/16, EU:C:2018:210, paragraph 50 and the case-law cited).
41


In addition, the Court has stated that, since Directive 2009/133 does not contain provisions on the appropriate fiscal measures for the purposes of implementing Article 8 thereof, the Member States have, subject to compliance with EU law, a certain degree of latitude with regard to that implementation (see, to that effect, judgment of 22 March 2018, Jacob and Lassus, C‑327/16 and C‑421/16, EU:C:2018:210, paragraphs 51 and 52 and the case-law cited).
42


In that context, the Court has previously accepted that a measure that consists in establishing the capital gain resulting from the exchange of securities and leading to the chargeable event for the taxation of that capital gain being deferred until the year in which the event putting an end to the deferral of taxation occurs, constitutes merely ‘a technique’ which, while allowing the Member States to preserve their fiscal competence and, accordingly, their financial interests, in accordance with Article 8(6) of Directive 2009/133, respects the principle of fiscal neutrality as set out Article 8(1) of that directive in that it leads to the exchange of securities not giving rise, of itself, to any taxation of that capital gain (see, to that effect, judgment of 22 March 2018, Jacob and Lassus, C‑327/16 and C‑421/16, EU:C:2018:210, paragraphs 54 and 55).