Confirmed by case law, the freedom of establishment (Articles 49, 54 TFEU) applies for companies formed in accordance with the law of a Member State and those having their registered office, central administration or principal place of business within the European Union. Thus, the company�s place of effective management (POM) itself and its location are irrelevant criteria for applying the freedom of establishment. Therefore, an EU company with a POM in a third State can generally rely on the freedom of establishment. Moreover, pursuant to the ECJ, cross-border mergers within the EU are also covered by the freedom of establishment (A OY, SEVIC Systems). However, Article 3(b) of the EU Merger Directive generally disallows a tax-neutral cross-border merger if the transferring or acquiring company has a POM outside the EU. In this article the author discusses whether Article 3(b) of the EU Merger Directive infringes the freedom of establishment by excluding EU companies with a POM in a third State from taking part in a tax-neutral cross-border merger. In this regard, a short overview of the Directive�s implementation in national tax law is given. On this basis, the article highlights general implications for the reorganization tax law in other Member States and other EU direct tax directives.
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