from “Affaritaliani.it” of 11/07/2017 – EU law and the case law of the European Union becomes more and more incisive in the legal situations of individual EU states.
The pre-eminence of Community law has been established nationally since the early 1980s, thanks to the recognition by the Constitutional Court of the primacy of European Union law.
It is interesting to note that this primacy is not only the condition of national law but also the judges who are called upon to interpret it and apply it. As far as our country is concerned, the Court of Cassation has repeatedly dealt with the effectiveness of the decisions made within the Community within our jurisdiction, stating the principle of direct observance of European case-law in the national context.
It is up to this point to bring some decisions of the Court of Cassation concerning the recognition of Community judgments in the national field. The Court first held that the Community judgments rendered inadmissible following a reference for a preliminary ruling and that the latter are immediately applicable by establishing, as the sole limit, the “respect for the fundamental principles of our constitutional order and the inalienable rights of the human person” (Cass. .1997, No. 2787).
The jurisprudence of the Supreme Court was followed by several pronouncements that had the effect of consolidating the value of the previous Community for our judges. For example, the Supreme Court in its most authoritative composition (Cass. SS.UU. 24.05.2007, No. 12067) has recognized the direct effectiveness of Community law and jurisprudence.
The hermeneutic activity of European judges has offered various tax-related applications, where different principles have been laid down for the protection of the taxpayer whether it is private or not. One of the newly-established principles, for example, involves commercial transactions between companies based in several European states, which in itself does not represent fraud. The ruling of the European Court of Justice (hereinafter referred to as the CGUE) is part of the jurisprudence orientation which has on several occasions protected the legitimacy of intra-Community transactions aimed at the acquisition of companies having their seat in another Member State.
This is what the CGUE stated by a judgment of 19.07.2012 on the outcome of the C-48/11 procedure – better known as Veronsaajien v. Aoy – which confirmed its orientation on the inadmissibility of general allegations of fraud (see judgment on www.studiolegalesances.it – sec. Documents).
In fact, the Court is always particularly attentive to the directives on direct taxation and the freedom to transfer companies within the Community.
Specifically, the reference for a preliminary ruling to the CGUE arises from the need to provide a harmonized interpretation of the EEA Agreement, which aims to strengthen trade relations between the Member States of the Union and the acceding countries of the European Association of free exchange) for which the Finnish Supreme Administrative Court referred to the following question: “If an exchange of shares by which a Finnish company transfers to a Norwegian company the shares of a company which it owns, receiving the counterparty of shares issued by the Norwegian company, should be dealt with for tax purposes, taking account of art. 31 and 40 of the EEA Agreement, in the same way, that is to say in a neutral manner, as if the exchange of shares concerns national companies or companies established in Member States of the European Union.
Well, according to the CGUE, the principle of freedom of establishment extends to the possibility for a Member State or a State party to the EEA Agreement having its head office within the Community to carry out its business through a subsidiary, branch or agency.
It is also noted that the Finnish national legislation provided that the neutrality of the share exchange transaction between companies was only granted if: “the registered office of the acquiring company is established in Finland or in a Member State of the European Union”.
For this reason, the CGUE considered the abovementioned national provisions as a restriction incompatible with both the rules of the Union and Art. 31 of the EEA Agreement because they were in breach of the principle of non-discrimination, since the Member State is required to apply the same taxation regime as regards the exchange of shares between national companies and those involving companies with head offices in non- EEA Agreement.
Lastly, it is clear that a restriction on freedom of establishment can only be permitted if it is justified by imperative reasons of interest….
