Official Journal of the European Union

C 179/5

(Case C-352/08) (<span class="oj-super oj-note-tag">1</span>)

(Approximation of laws - Directive 90/434/EEC - Common system of taxation applicable to mergers, divisions, transfers of assets and exchanges of shares concerning companies of different Member States - Article 11(1)(a) - Whether applicable to transaction tax)

(2010/C 179/06)

Language of the case: Dutch

Referring court

Parties to the main proceedings

Applicant: Modehuis A. Zwijnenburg BV

Defendant: Staatssecretaris van Financiën

Re:

Reference for a preliminary ruling — Hoge Raad der Nederlanden Den Haag — Interpretation of 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) — Concept of tax evasion or tax avoidance — Transaction aimed at escaping a national tax not referred to in the Directive’s list of taxes which may not be levied

Operative part of the judgment

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 is to be interpreted as meaning that the favourable arrangements which that directive introduces may not be withheld from a taxpayer who has sought, by way of a legal stratagem involving a company merger, to avoid the levying of a tax such as that at issue in the main proceedings, namely transaction tax, where that tax does not come within the scope of application of that directive.

Language of the case: Dutch.