Marc Jacob and Ministre des Finances et des Comptes publics v Ministre des Finances et des Comptes publics and Marc Lassus.
Date: 2018-03-22
33


In that regard, 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 15 November 2016, Ullens de Schooten, C‑268/15, EU:C:2016:874, paragraph 53 and the case-law cited).
34


In those 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 (judgment of 14 March 2013, Allianz Hungária Biztosító and Others, C‑32/11, EU:C:2013:160, paragraph 20 and the case-law cited).
47


By imposing that fiscal neutrality requirement with regard to such a shareholder, the Merger Directive aims — as is stated in the first and fourth recitals — to ensure that an exchange of securities concerning companies from different Member States is not hampered by particular restrictions, disadvantages or distortions arising from the tax provisions of the Member States (judgment of 11 December 2008, A.T., C‑285/07, EU:C:2008:705, paragraph 21).
49


Thus, the second subparagraph of Article 8(2) of the Merger Directive provides that the application of Article 8(1) is not to prevent the Member States from taxing the gain arising out of the subsequent transfer of securities received in the same way as the gain arising out of the transfer of securities existing before the acquisition (see, to that effect, judgment of 11 December 2008, A.T., C‑285/07, EU:C:2008:705, paragraph 35).
50


It is apparent 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 from 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.
51


By contrast, neither Article 8 of the Merger Directive nor any other article of that directive contains provisions on the appropriate fiscal measures for the purposes of implementing Article 8.
52


Member States therefore have, subject to compliance with EU law, a certain degree of latitude with regard to that implementation (see, to that effect, judgments of 5 July 2007, Kofoed, C‑321/05, EU:C:2007:408, paragraphs 41 to 43, and of 23 November 2017, A, C‑292/16, EU:C:2017:888, paragraph 22).
54


Such a measure, in so far as it leads 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, namely the transfer of securities received in exchange, ensures, as the Advocate General observed in points 59 and 60 of his Opinion, that the exchange of securities in itself does not give rise to any taxation of that capital gain. That measure therefore respects the principle of fiscal neutrality as set out Article 8(1) of the Merger Directive.
55


That conclusion cannot be called into question by the mere fact that the capital gain resulting from the exchange of securities is established when that transaction occurs. In that regard, it must be pointed out that such establishment is merely a technique allowing the Member State with fiscal competence in respect of the securities existing before the exchange, but which, under Article 8(1) of the Merger Directive, has been prevented from exercising that competence at that time, to preserve its fiscal competence and exercise it at a later date, namely on the date of the transfer of the securities received in exchange in accordance with the second subparagraph of Article 8(2) of that directive.
61


In the absence of harmonisation at Union level, Member States retain the power to define, by treaty or unilaterally, in compliance with EU law, the criteria for allocating their powers of taxation, with a view to eliminating double taxation (see, by analogy, judgment of 29 November 2011, National Grid Indus, C‑371/10, EU:C:2011:785, paragraphs 45 and 46 and the case-law cited).
65


That finding is also consistent with the principle of fiscal territoriality linked to a temporal component, as recognised by the Court, which seeks to preserve the allocation of powers of taxation between the Member States and pursuant to which a Member State has the right to tax the capital gain arising within the ambit of its fiscal competence (see, to that effect, judgment of 29 November 2011, National Grid Indus, C‑371/10, EU:C:2011:785, paragraphs 45 and 46 and the case-law cited).
71


It must be recalled that operations covered by the Merger Directive are a particular method of exercise of the freedom of establishment, important for the proper functioning of the internal market, and are therefore economic activities in respect of which the Member States are required to ensure that freedom (judgment of 23 November 2017, A, C‑292/16, EU:C:2017:888, paragraph 23 and the case-law cited).
74


In that regard, it must be recalled that all measures which prohibit, impede or render less attractive the exercise of freedom of establishment within the meaning of Article 49 TFEU must be considered to be restrictions of that freedom (judgment of 23 November 2017, A, C‑292/16, EU:C:2017:888, paragraph 25 and the case-law cited).
77


Such an obstacle is permissible only if it relates to situations which are not objectively comparable or if it can be justified by overriding reasons in the public interest recognised by EU law. In addition, in such a case, that obstacle must be appropriate for ensuring the attainment of the objective in question and must not go beyond what is necessary to attain that objective (judgment of 23 November 2017, A, C‑292/16, EU:C:2017:888, paragraph 28 and the case-law cited).
80


In that regard, it must be noted that preserving the allocation of fiscal competence between Member States is an objective recognised by the Court (see, to that effect, judgment of 29 November 2011, National Grid Indus, C‑371/10, EU:C:2011:785, paragraph 45).