29.9.2012

Official Journal of the European Union

C 295/8

(Case C-48/11) (<span class="super">1</span>)

(Direct taxation - Freedom of establishment - Free movement of capital - EEA Agreement - Articles 31 and 40 - Directive 2009/133/EC - Scope - Exchange of shares between a company established in a Member State and a company established in a third State party to the EEA Agreement - Refusal of a tax advantage - Agreement on mutual administrative assistance in the field of taxation)

2012/C 295/12

Language of the case: Finnish

Referring court

Parties to the main proceedings

Applicant: Veronsaajien oikeudenvalvontayksikkö

Defendant: A Oy

Re:

Reference for a preliminary ruling — Korkein hallinto-oikeus — Articles 31 and 40 of the Agreement of 2 May 1992 on the European Economic Area (OJ 1992 L 1, p. 3) — Interpretation of Council Directive 2009/133/EC of 19 October 2009 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 (OJ 2009 L 310, p. 34) — Scope of application of that directive — Exchange of shares between a company established in a Member State of the European Union and a company established in a third state that is a member of the EEA (Norway) — Whether those transactions are treated for tax purposes in the same way as an exchange of shares between domestic companies or between companies established in Member States

Operative part of the judgment

Article 31 of Agreement on the European Economic Area of 2 May 1992 precludes legislation of a Member State which treats an exchange of shares between a company established in that Member State and a company established in a third country that is a party to that agreement as a taxable disposal of shares whereas such an operation would be neutral for tax purposes if it concerned only domestic companies or companies established in other Member States, if there is, between that Member State and the third country, an agreement on mutual administrative assistance in the field of taxation which provides for an exchange of information between the national authorities which is as effective as that provided for in Council Directive 77/799/EEC of 19 December 1977 concerning mutual assistance by the competent authorities of the Member States in the field of direct taxation and Council Directive 2011/16/EU of 15 February 2011 on administrative cooperation in the field of taxation and repealing Directive 77/799, which is for the referring court to ascertain.

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Language of the case: Finnish.