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Council Directive of 23 July 1990 on the common system of taxation applicable to mergers, divisions, partial divisions, transfers of assets and exchanges of shares concerning companies of different Member States and to the transfer of the registered office, of an SE or SCE, between Member States (90/434/EEC)

Council Directive of 23 July 1990 on the common system of taxation applicable to mergers, divisions, partial divisions, transfers of assets and exchanges of shares concerning companies of different Member States and to the transfer of the registered office, of an SE or SCE, between Member States (90/434/EEC)

THE COUNCIL OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty establishing the European Economic Community, and in particular Article 100 thereof,

Having regard to the proposal of the Commission(1),

Having regard to the opinion of the European Parliament(2),

Having regard to the opinion of the Economic and Social Committee(3),

  1. Whereas mergers, divisions, transfers of assets and exchanges of shares concerning companies of different Member States may be necessary in order to create within the Community conditions analogous to those of an internal market and in order thus to ensure the establishment and effective functioning of the common market; whereas such operations ought not to be hampered by restrictions, disadvantages or distortions arising in particular from the tax provisions of the Member States; whereas to that end it is necessary to introduce with respect to such operations tax rules which are neutral from the point of view of competition, in order to allow enterprises to adapt to the requirements of the common market, to increase their productivity and to improve their competitive strength at the international level;

  2. Whereas tax provisions disadvantage such operations, in comparison with those concerning companies of the same Member State; whereas it is necessary to remove such disadvantages;

  3. Whereas it is not possible to attain this objective by an extension at the Community level of the systems presently in force in the Member States, since differences between these systems tend to produce distortions; whereas only a common tax system is able to provide a satisfactory solution in this respect;

  4. Whereas the common tax system ought to avoid the imposition of tax in connection with mergers, divisions, transfers of assets or exchanges of shares, while at the same time safeguarding the financial interests of the State of the transferring or acquired company;

  5. Whereas in respect of mergers, divisions or transfers of assets, such operations normally result either in the transformation of the transferring company into a permanent establishment of the company receiving the assets or in the assets becoming connected with a permanent establishment of the latter company;

  6. Whereas the system of deferral of the taxation of the capital gains relating to the assets transferred until their actual disposal, applied to such of those assets as are transferred to that permanent establishment, permits exemption from taxation of the corresponding capital gains, while at the same time ensuring their ultimate taxation by the State of the transferring company at the date of their disposal;

  7. Whereas it is also necessary to define the tax regime applicable to certain provisions, reserves or losses of the transferring company and to solve the tax problems occurring where one of the two companies has a holding in the capital of the other;

  8. Whereas the allotment to the shareholders of the transferring company of securities of the receiving or acquiring company would not in itself give rise to any taxation in the hands of such shareholders;

  9. Whereas it is necessary to allow Member States the possibility of refusing to apply this Directive where the merger, division, transfer of assets or exchange of shares operation has as its objective tax evasion or avoidance or results in a company, whether or not it participates in the operation, no longer fulfilling the conditions required for the representation of employees in company organs,

HAS ADOPTED THIS DIRECTIVE:

TITLE I General provisions

Article 1

Each Member State shall apply this Directive to the following:

  1. mergers, divisions, partial divisions, transfers of assets and exchanges of shares in which companies from two or more Member States are involved,

  2. transfers of the registered office from one Member State to another Member State of European companies (Societas Europaea or SE), as established in Council Regulation (EC) No 2157/2001 of 8 October 2001, on the statute for a European Company (SE)(4), and European Cooperative Societies (SCE), as established in Council Regulation (EC) No 1435/2003 of 22 July 2003 on the Statute for a European Cooperative Society (SCE)(5).

Article 2

For the purposes of this Directive:

  1. ‘merger’ shall mean an operation whereby:

    • one or more companies, on being dissolved without going into liquidation, transfer all their assets and liabilities to another existing company in exchange for the issue to their shareholders of securities respresenting the capital of that other company, and, if applicable, a cash payment not exceeding 10 % of the nominal value, or, in the absence of a nominal value, of the accounting par value of those securities,

    • two or more companies, on being dissolved without going into liquidation, transfer all their assets and liabilities to a company that they form, in exchange for the issue to their shareholders of securities representing the capital of that new company, and, if applicable, a cash payment not exceeding 10 % of the nominal value, or in the absence of a nominal value, of the accounting par value of those securities,

    • a company, on being dissolved without going into liquidation, transfers all its assets and liabilities to the company holding all the securities representing its capital;

  2. ‘division’ shall mean an operation whereby a company, on being dissolved without going into liquidation, transfers all its assets and liabilities to two or more existing or new companies, in exchange for the pro rata issue to its shareholders of securities representing the capital of the companies receiving the assets and liabilities, and, if applicable, a cash payment not exceeding 10 % of the nominal value or, in the absence of a nominal value, of the accounting par value of those securities;

  3. ‘partial division’ shall mean an operation whereby a company transfers, without being dissolved, one or more branches of activity, to one or more existing or new companies, leaving at least one branch of activity in the transferring company, in exchange for the pro-rata issue to its shareholders of securities representing the capital of the companies receiving the assets and liabilities, and, if applicable, a cash payment not exceeding 10 % of the nominal value or, in the absence of a nominal value, of the accounting par value of those securities;

  4. ‘transfer of assets’ shall mean an operation whereby a company transfers without being dissolved all or one or more branches of its activity to another company in exchange for the transfer of securities representing the capital of the company receiving the transfer;

  5. ‘exchange of shares’ shall mean an operation whereby a company acquires a holding in the capital of another company such that it obtains a majority of the voting rights in that company, or, holding such a majority, acquires a further holding, in exchange for the issue to the shareholders of the latter company, in exchange for their securities, of securities representing the capital of the former company, and, if applicable, a cash payment not exceeding 10 % of the nominal value, in the absence of a nominal value, of the accounting par value of the securities issued in exchange;

  6. ‘transferring company’ shall mean the company transferring its assets and liabilities or transferring all or one or more branches of its activity;

  7. ‘receiving company’ shall mean the company receiving the assets and liabilities or all or one or more branches of the activity of the transferring company;

  8. ‘acquired company’ shall mean the company in which a holding is acquired by another company by means of an exchange of securities;

  9. ‘acquiring company’ shall mean the company which acquires a holding by means of an exchange of securities;

  10. ‘branch of activity’ shall mean all the assets and liabilities of a division of a company which from an organizational point of view constitute an independent business, that is to say an entity capable of functioning by its own means;

  11. ‘transfer of the registered office’ shall mean an operation whereby an SE or an SCE, without winding up or creating a new legal person, transfers its registered office from one Member State to another Member State.

Article 3

For the purposes of this Directive, ‘company from a Member State’ shall mean any company which:

  1. takes one of the forms listed in the Annex hereto;

  2. according to the tax laws of a Member State is considered to be resident in that State for tax purposes and, under the terms of a double taxation agreement concluded with a third State, is not considered to be resident for tax purposes outside the Community;

  3. moreover, is subject to one of the following taxes, without the possibility of an option or of being exempt:

    • impôt des sociétés/vennootschapsbelasting in Belgium,

    • selskabsskat in Denmark,

    • Körperschaftsteuer in the Federal Republic of Germany,

    • φόρος εισοδήματος νομικών προσώπων κερδοσκοπικού χαρακτήρα, in Greece,

    • impuesto sobre sociedades in Spain,

    • impôt sur les sociétés in France,

    • corporation tax in Ireland,

    • imposta sul reddito delle società in Italy,

    • impôt sur le revenu des collectivités in Luxembourg,

    • vennootschapsbelasting in the Netherlands,

    • imposto sobre o rendimento das pessoas colectivas in Portugal,

    • corporation tax in the United Kingdom,

    • Körperschaftsteuer in Austria,

    • yhteisöjen tulovero/inkomstskatten för samfund in Finland,

    • statlig inkomstskatt in Sweden,

    • Daň z příjmů právnických osobin the Czech Republic,

    • Tulumaks in Estonia,

    • Φόρος Εισοδήματος in Cyprus,

    • uzņēmumu ienākuma nodoklis in Latvia,

    • Pelno mokestis in Lithuania,

    • Társasági adó in Hungary,

    • Taxxa fuq l-income in Malta,

    • Podatek dochodowy od osób prawnych in Poland,

    • Davek od dobička pravnih oseb in Slovenia,

    • Daň z príjmov právnických osôb in Slovakia,

    or to any other tax which may be substituted for any of the above taxes.

TITLE II Rules applicable to mergers, divisions, partial divisions, and exchanges of shares

Article 4

Article 5

Article 6

Article 7

Article 8

TITLE III Rules applicable to transfers of assets.

Article 9

TITLE IV Special case of the transfer of a permanent establishment

Article 10

TITLE IVa Special case of transparent entities

Article 10a

TITLE IVb Rules applicable to the transfer of the registered office of an SE or an SCE

Article 10b

Article 10c

Article 10d

TITLE V Final provisions

Article 11

Article 12

Article 13

ANNEX