Nordcurrent Group: Interpretation of the Anti-Abuse Provision in the EU Parent-Subsidiary Directive – Opinion Statement ECJ-TF 1/2025 on the CJEU Decision of 3 April 2025 in Nordcurrent Group UAB (Case C-228/24)
et_2025_7 Nordcurrent Group Interpretation of the Anti-Abuse Provision in the EU Parent-Subsidiary Directive – Opinion Statement ECJ-TF 2_2025 on the CJEU Decision of 3 April 2025 in Nordcurrent Group UAB (Case - IBFD.pdf
[en] In this CFE Opinion Statement, submitted to the EU Institutions in May 2025, the CFE ECJ Task Force comments on the CJEU’s decision of 3 September 2024 in Nordcurrent Group UAB (Case C-228/24), in which the Court concluded that the notion of abuse requires both an objective element – namely the existence of a non-genuine arrangement – and a subjective element – namely the intention to obtain a tax advantage that defeats the object or purpose of the Directive. Further, in deciding whether an arrangement is a non-genuine arrangement, all facts and circumstances have to be taken into account, employing a wide time horizon. Regarding the tax advantage, it does not suffice to take a look at the participation exemption in isolation. The overall tax burden of the investment has to be taken into consideration.
Disciplines :
Tax law European & international law
Author, co-author :
Kofler, Georg; Institute for Austrian and International Tax Law of WU Wien, Austria
Prats, Alfredo Garcia; University of Valencia, Spain
HASLEHNER, Werner ; University of Luxembourg > Faculty of Law, Economics and Finance (FDEF) > Department of Law (DL)
Kemmeren, Eric; Fiscal Institute Tilburg of Tilburg University, Netherlands
Lang, Michael; Institute for Austrian and International Tax Law of WU Wien, Austria
Nogueira, João Félix Pinto; Universidade Católica Portuguesa, Portugal
Panayi, Christiana H. J. I.; Queen Mary University of London, United Kingdom
Raventós-Calvo, Stella
Graulich, Isabelle Richelle; Tax Institute –HEC – University of Liège, Belgium ; Brussels Bar, Belgium
Rust, Alexander; Institute for Austrian and International Tax Law of WU Wien, Austria
External co-authors :
yes
Language :
English
Title :
Nordcurrent Group: Interpretation of the Anti-Abuse Provision in the EU Parent-Subsidiary Directive – Opinion Statement ECJ-TF 1/2025 on the CJEU Decision of 3 April 2025 in Nordcurrent Group UAB (Case C-228/24)
Publication date :
July 2025
Journal title :
European Taxation
ISSN :
0014-3138
eISSN :
2352-9199
Publisher :
International Bureau of Fiscal Documentation (IBFD)
CJEU, 7 Sept. 2017, Eqiom and Enka, C-6/16, ECLI:EU:C:2017:641.
CJEU, 20 Dec. 2017, Deister Holding AG and Juhler Holding A/S, C-504/16 and C-613/16, ECLI:EU:C:2017:1009.
Council Directive 2011/96/EU on the common system of taxation applicable in the case of parent companies and subsidiaries of different Member States, OJ L 345/8 (2011). While art. 1(2) of the PSD uses the phrase “object or purpose of this Directive”, the CJEU sometimes employs “object and purpose” (see paras. 44 and 55) and sometimes “object or purpose” (see paras. 22, 46 and 48).
Regarding the recognition of the Tax Dispute Commission as a court allowed to make a referral, in the sense of the Treaty on the Functioning of the European Union of 13 December 2007, OJ C115 (2008), art. 267, see CJEU, 21 Oct. 2010, Nidera Handelscompagnie BV v. Valstybinė mokesčių inspekcija prie Lietuvos Respublikos finansų ministerijos, C-385/09, ECLI:EU:C:2010:627.
C-228/24, Nordcurrent Group UAB, para. 19.
C-116/16 and C-117/16, T Danmark and Y Denmark.
C-228/24, Nordcurrent Group UAB, para. 31.
Council Directive 2016/1164 of 12 July 2016 Laying down Rules against Tax Avoidance Practices that Directly Affect the Functioning of the Internal Market, OJ L 193/1 (2016).
Council Directive 2003/49/EC of 3 June 2003 on a Common System of Taxation Applicable to Interest and Royalty Payments Made Between Companies of Different Member States, OJ L157 (2003).
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 (Codified Version), OJ L310 (2009).
OECD, Model Tax Convention on Income and on Capital 2017 (Full Version) (OECD, 2019).
CFE ECJ Task Force, “Opinion Statement ECJ-TF 2/2019 on the ECJ Decisions of 26 February 2019 in Cases C-115/16, C-118/16, C-119/16 and C-299/16, N Luxembourg I et al, and Cases C-116/16 and C-117/17, T Danmark et al, Concerning the “Beneficial Ownership” Requirement and the Anti-Abuse Principle in the Company Tax Directives”, Eur. Taxn. 59, no. 10 (2019): 500, https://doi.org/10.59403/3ggxtef.
See Council of the European Union, Draft Minutes of 10 February 2015, 5547/15 ADD 1.
