22.5.2010

Official Journal of the European Union

C 134/25

(Case C-126/10)

2010/C 134/37

Language of the case: Portuguese

Referring court

Parties to the main proceedings

Appellant: FOGGIA — Sociedade Gestora de Participações Sociais, SA

Respondent: Secretário de Estado dos Assuntos Fiscais

Intervening Party: Ministério Público

Questions referred

(a)What are the meaning and effect of Article 11(1)(a) of Directive 90/434/EEC (1) of 23 July 1990 and, in particular, what is the meaning of ‘valid commercial reasons’ and ‘restructuring or rationalisation of the activities’ of companies participating in operations covered by Directive 90/434/EEC ?

(b)Is the view taken by the tax authorities, that there are no serious commercial reasons for the acquiring company’s request to transfer tax losses, leading them to conclude that, from the acquiring company’s point of view, there was no apparent commercial interest in acquisition, since the acquired company had developed no activity as a holding company and had no financial holdings, and would consequently transfer only substantial losses, although the merger might represent a positive effect in terms of the cost structure of the group, compatible with that provision of Community law?

*

Article 11(1)(a) of Council Directive 90/434/EEC of 23 July 1990 on the common system of taxation applicable to mergers, divisions, transfers of assets and exchanges of shares concerning companies of different Member States (OJ 1990 L 225, p. 1).