25.11.2009 EN Official Journal of the European Union L 310/34 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) THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty establishing the European Community, and in particular Article 94 thereof, Having regard to the proposal from the Commission, Having regard to the opinion of the European Parliament (1), Having regard to the opinion of the European Economic and Social Committee (2), Whereas: (1) Council Directive 90/434/EEC of 23 July 1990 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 (3) has been substantially amended several times (4). In the interests of clarity and rationality the said Directive should be codified. (2) Mergers, divisions, partial divisions, transfers of assets and exchanges of shares concerning companies of different Member States may be necessary in order to create within the Community conditions analogous to those of an internal market and in order thus to ensure the effective functioning of such an internal market. Such operations ought not to be hampered by restrictions, disadvantages or distortions arising in particular from the tax provisions of the Member States. To that end it is necessary, with respect to such operations, to provide for tax rules which are neutral from the point of view of competition, in order to allow enterprises to adapt to the requirements of the internal market, to increase their productivity and to improve their competitive strength at the international level. (3) Tax provisions disadvantage such operations, in comparison with those concerning companies of the same Member State. It is necessary to remove such disadvantages. (4) It is not possible to attain this objective by an extension at Community level of the systems in force in the Member States, since differences between these systems tend to produce distortions. Only a common tax system is able to provide a satisfactory solution in this respect. (5) The common tax system ought to avoid the imposition of tax in connection with mergers, divisions, partial divisions, transfers of assets or exchanges of shares, while at the same time safeguarding the financial interests of the Member State of the transferring or acquired company. (6) In respect of mergers, divisions or transfers of assets, such operations normally result either in the transformation of the transferring company into a permanent establishment of the company receiving the assets or in the assets becoming connected with a permanent establishment of the latter company. (7) The system of deferral of the taxation of the capital gains relating to the assets transferred until their actual disposal, applied to such of those assets as are transferred to that permanent establishment, permits exemption from taxation of the corresponding capital gains, while at the same time ensuring their ultimate taxation by the Member State of the transferring company at the date of their disposal. (8) While the companies listed in Annex I, Part A are corporate taxpayers in their Member State of residence, some of them may be considered to be fiscally transparent by other Member States. In order to preserve the effectiveness of this Directive, Member States treating non-resident corporate taxpayers as fiscally transparent should grant the benefits of this Directive to them. However, Member States should have the option not to apply the relevant provisions of this Directive when taxing a direct or indirect shareholder of those taxpayers. (9) It is also necessary to define the tax regime applicable to certain provisions, reserves or losses of the transferring company and to solve the tax problems occurring where one of the two companies has a holding in the capital of the other. (10) The allotment to the shareholders of the transferring company of securities of the receiving or acquiring company should not in itself give rise to any taxation in the hands of such shareholders. (11) The decision of an SE or SCE to reorganise its business by transferring its registered office should not be unduly hampered by discriminatory tax rules or by restrictions, disadvantages or distortions arising from national tax legislation which is contrary to Community Law. The transfer, or an event connected with the transfer, may give rise to some form of taxation in the Member State from which the office is transferred. Where the assets of the SE or of the SCE remain effectively connected with a permanent establishment in the Member State from which the registered office was transferred, that permanent establishment should enjoy benefits similar to those provided for by Articles 4, 5 and 6. Moreover, the taxation of shareholders on the occasion of the transfer of the registered office should be excluded. (12) This Directive does not deal with losses of a permanent establishment in another Member State recognised in the Member State of residence of an SE or SCE. In particular, where the registered office of an SE or SCE is transferred to another Member State, such transfer does not prevent the former Member State of residence from reinstating losses of the permanent establishment in due time. (13) It is necessary to allow Member States the possibility of refusing to apply this Directive where the merger, division, partial division, transfer of assets, exchange of shares or transfer of the registered office of an SE or SCE has as its objective tax evasion or avoidance or results in a company, whether or not it participates in the operation, no longer fulfilling the conditions required for the representation of employees in company organs. (14) One of the aims of this Directive is to eliminate obstacles to the functioning of the internal market, such as double taxation. In so far as this is not fully achieved by the provisions of this Directive, Member States should take the necessary measures to achieve this aim. (15) This Directive should be without prejudice to the obligations of the Member States relating to the time-limits for transposition into national law and application of the Directives set out in Annex II, Part B, HAS ADOPTED THIS DIRECTIVE: CHAPTER I GENERAL PROVISIONS Article 1 Each Member State shall apply this Directive to the following: (a) mergers, divisions, partial divisions, transfers of assets and exchanges of shares involving companies from two or more Member States; (b) transfers of the registered office from one Member State to another Member State of a European company (Societas Europaea or SE), as established in Council Regulation (EC) No 2157/2001 on the Statute for a European company (SE) (5), and a European Cooperative Society (SCE), as established in Council Regulation (EC) No 1435/2003 on the Statute for a European Cooperative Society (SCE) (6). Article 2 For the purposes of this Directive, the following definitions shall apply: (a) ‘merger’ means an operation whereby: (i) one or more companies, on being dissolved without going into liquidation, transfer all their assets and liabilities to another existing company in exchange for the issue to their shareholders of securities representing the capital of that other company, and, if applicable, a cash payment not exceeding 10 % of the nominal value, or, in the absence of a nominal value, of the accounting par value of those securities; (ii) two or more companies, on being dissolved without going into liquidation, transfer all their assets and liabilities to a company that they form, in exchange for the issue to their shareholders of securities representing the capital of that new company, and, if applicable, a cash payment not exceeding 10 % of the nominal value, or in the absence of a nominal value, of the accounting par value of those securities; (iii) a company, on being dissolved without going into liquidation, transfers all its assets and liabilities to the company holding all the securities representing its capital; (b) ‘division’ means an operation whereby a company, on being dissolved without going into liquidation, transfers all its assets and liabilities to two or more existing or new companies, in exchange for the pro rata issue to its shareholders of securities representing the capital of the companies receiving the assets and liabilities, and, if applicable, a cash payment not exceeding 10 % of the nominal value or, in the absence of a nominal value, of the accounting par value of those securities; (c) ‘partial division’ means an operation whereby a company transfers, without being dissolved, one or more branches of activity, to one or more existing or new companies, leaving at least one branch of activity in the transferring company, in exchange for the pro- rata issue to its shareholders of securities representing the capital of the companies receiving the assets and liabilities, and, if applicable, a cash payment not exceeding 10 % of the nominal value or, in the absence of a nominal value, of the accounting par value of those securities; (d) ‘transfer of assets’ means an operation whereby a company transfers without being dissolved all or one or more branches of its activity to another company in exchange for the transfer of securities representing the capital of the company receiving the transfer; (e) ‘exchange of shares’ means an operation whereby a company acquires a holding in the capital of another company such that it obtains a majority of the voting rights in that company, or, holding such a majority, acquires a further holding, in exchange for the issue to the shareholders of the latter company, in exchange for their securities, of securities representing the capital of the former company, and, if applicable, a cash payment not exceeding 10 % of the nominal value, in the absence of a nominal value, of the accounting par value of the securities issued in exchange; (f) ‘transferring company’ means the company transferring its assets and liabilities or transferring all or one or more branches of its activity; (g) ‘receiving company’ means the company receiving the assets and liabilities or all or one or more branches of the activity of the transferring company; (h) ‘acquired company’ means the company in which a holding is acquired by another company by means of an exchange of securities; (i) ‘acquiring company’ means the company which acquires a holding by means of an exchange of securities; (j) ‘branch of activity’ means all the assets and liabilities of a division of a company which from an organisational point of view constitute an independent business, that is to say an entity capable of functioning by its own means; (k) ‘transfer of the registered office’ means an operation whereby an SE or an SCE, without winding up or creating a new legal person, transfers its registered office from one Member State to another Member State. Article 3 For the purposes of this Directive, ‘company from a Member State’ shall mean any company which: (a) takes one of the forms listed in Annex, I Part A; (b) according to the tax laws of a Member State is considered to be resident in that Member State for tax purposes and, under the terms of a double taxation agreement concluded with a third country, is not considered to be resident for tax purposes outside the Community; and (c) is subject to one of the taxes listed in Annex I, Part B, without the possibility of an option or of being exempt, or to any other tax which may be substituted for any of those taxes. CHAPTER II RULES APPLICABLE TO MERGERS, DIVISIONS, PARTIAL DIVISIONS, TO TRANSFERS OF ASSETS AND EXCHANGES OF SHARES Article 4 1. A merger, division or partial division shall not give rise to any taxation of capital gains calculated by reference to the difference between the real values of the assets and liabilities transferred and their values for tax purposes. 2. For the purpose of this Article, the following definitions shall apply: (a) ‘value for tax purposes’: the value on the basis of which any gain or loss would have been computed for the purposes of tax upon the income, profits or capital gains of the transferring company if such assets or liabilities had been sold at the time of the merger, division or partial division but independently of it; (b) ‘transferred assets and liabilities’: those assets and liabilities of the transferring company which, in consequence of the merger, division or partial division, are effectively connected with a permanent establishment of the receiving company in the Member State of the transferring company and play a part in generating the profits or losses taken into account for tax purposes. 3. Where paragraph 1 applies and where a Member State considers a non-resident transferring company as fiscally transparent on the basis of that Member State’s assessment of the legal characteristics of that company arising from the law under which it is constituted and therefore taxes the shareholders on their share of the profits of the transferring company as and when those profits arise, that Member State shall not tax any income, profits or capital gains calculated by reference to the difference between the real values of the assets and liabilities transferred and their values for tax purposes. 4. Paragraphs 1 and 3 shall apply only if the receiving company computes any new depreciation and any gains or losses in respect of the assets and liabilities transferred according to the rules that would have applied to the transferring company or companies if the merger, division or partial division had not taken place. 5. Where, under the laws of the Member State of the transferring company, the receiving company is entitled to have any new depreciation or any gains or losses in respect of the assets and liabilities transferred computed on a basis different from that set out in paragraph 4, paragraph 1 shall not apply to the assets and liabilities in respect of which that option is exercised. Article 5 The Member States shall take the necessary measures to ensure that, where provisions or reserves properly constituted by the transferring company are partly or wholly exempt from tax and are not derived from permanent establishments abroad, such provisions or reserves may be carried over, with the same tax exemption, by the permanent establishments of the receiving company which are situated in the Member State of the transferring company, the receiving company thereby assuming the rights and obligations of the transferring company. Article 6 To the extent that, if the operations referred to in Article 1(a) were effected between companies from the Member State of the transferring company, the Member State would apply provisions allowing the receiving company to takeover the losses of the transferring company which had not yet been exhausted for tax purposes, it shall extend those provisions to cover the takeover of such losses by the receiving company’s permanent establishments situated within its territory. Article 7 1. Where the receiving company has a holding in the capital of the transferring company, any gains accruing to the receiving company on the cancellation of its holding shall not be liable to any taxation. 2. The Member States may derogate from paragraph 1 where the receiving company has a holding of less than 15 % in the capital of the transferring company. From 1 January 2009 the minimum holding percentage shall be 10 %. Article 8 1. On a merger, division or exchange of shares, the allotment of securities representing the capital of the receiving or acquiring company to a shareholder of the transferring or acquired company in exchange for securities representing the capital of the latter company shall not, of itself, give rise to any taxation of the income, profits or capital gains of that shareholder. 2. On a partial division, the allotment to a shareholder of the transferring company of securities representing the capital of the receiving company shall not, of itself, give rise to any taxation of the income, profits or capital gains of that shareholder. 3. Where a Member State considers a shareholder as fiscally transparent on the basis of that Member State’s assessment of the legal characteristics of that shareholder arising from the law under which it is constituted and therefore taxes those persons having an interest in the shareholder on their share of the profits of the shareholder as and when those profits arise, that Member State shall not tax those persons on income, profits or capital gains from the allotment of securities representing the capital of the receiving or acquiring company to the shareholder. 4. Paragraphs 1 and 3 shall apply only if the shareholder does not attribute to the securities received a value for tax purposes higher than the value the securities exchanged had immediately before the merger, division or exchange of shares. 5. Paragraphs 2 and 3 shall apply only if the shareholder does not attribute to the sum of the securities received and those held in the transferring company, a value for tax purposes higher than the value the securities held in the transferring company had immediately before the partial division. 6. The application of paragraphs 1, 2 and 3 shall not prevent the Member States from taxing the gain arising out of the subsequent transfer of securities received in the same way as the gain arising out of the transfer of securities existing before the acquisition. 7. For the purpose of this Article, ‘value for tax purposes’ shall mean the value on the basis of which any gain or loss would be computed for the purposes of tax upon the income, profits or capital gains of a shareholder of the company. 8. Where, under the law of the Member State in which he is resident, a shareholder may opt for tax treatment different from that set out in paragraphs 4 and 5, paragraphs 1, 2 and 3 shall not apply to the securities in respect of which such an option is exercised. 9. Paragraphs 1, 2 and 3 shall not prevent a Member State from taking into account when taxing shareholders any cash payment that may be made on the merger, division, partial division or exchange of shares. Article 9 Articles 4, 5 and 6 shall apply to transfers of assets. CHAPTER III SPECIAL CASE OF THE TRANSFER OF A PERMANENT ESTABLISHMENT Article 10 1. Where the assets transferred in a merger, a division, a partial division or a transfer of assets include a permanent establishment of the transferring company which is situated in a Member State other than that of the transferring company, the Member State of the transferring company shall renounce any right to tax that permanent establishment. The Member State of the transferring company may reinstate in the taxable profits of that company such losses of the permanent establishment as may previously have been set off against the taxable profits of the company in that Member State and which have not been recovered. The Member State in which the permanent establishment is situated and the Member State of the receiving company shall apply the provisions of this Directive to such a transfer as if the Member State where the permanent establishment is situated were the Member State of the transferring company. This paragraph shall also apply in the case where the permanent establishment is situated in the same Member State as that in which the receiving company is resident. 2. By way of derogation from paragraph 1, where the Member State of the transferring company applies a system of taxing worldwide profits, that Member State shall have the right to tax any profits or capital gains of the permanent establishment resulting from the merger, division, partial division or transfer of assets, on condition that it gives relief for the tax that, but for the provisions of this Directive, would have been charged on those profits or capital gains in the Member State in which that permanent establishment is situated, in the same way and in the same amount as it would have done if that tax had actually been charged and paid. CHAPTER IV SPECIAL CASE OF TRANSPARENT ENTITIES Article 11 1. Where a Member State considers a non-resident transferring or acquired company to be fiscally transparent on the basis of that Member State’s assessment of the legal characteristics of that company arising from the law under which it is constituted, it shall have the right not to apply the provisions of this Directive when taxing a direct or indirect shareholder of that company in respect of the income, profits or capital gains of that company. 2. A Member State exercising the right referred to in paragraph 1 shall give relief for the tax which, but for the provisions of this Directive, would have been charged on the fiscally transparent company on its income, profits or capital gains, in the same way and in the same amount as that Member State would have done if that tax had actually been charged and paid. 3. Where a Member State considers a non-resident receiving or acquiring company to be fiscally transparent on the basis of that Member State’s assessment of the legal characteristics of that company arising from the law under which it is constituted, it shall have the right not to apply Article 8(1), (2) and (3). 4. Where a Member State considers a non-resident receiving company to be fiscally transparent on the basis of that Member State’s assessment of the legal characteristics of that company arising from the law under which it is constituted, that Member State may apply to any direct or indirect shareholders the same treatment for tax purposes as it would if the receiving company were resident in that Member State. CHAPTER V RULES APPLICABLE TO THE TRANSFER OF THE REGISTERED OFFICE OF AN SE OR AN SCE Article 12 1. Where: (a) an SE or an SCE transfers its registered office from one Member State to another Member State; or (b) in connection with the transfer of its registered office from one Member State to another Member State, an SE or an SCE, which is resident in the first Member State, ceases to be resident in that Member State and becomes resident in another Member State; that transfer of registered office or the cessation of residence shall not give rise to any taxation of capital gains, calculated in accordance with Article 4(1), in the Member State from which the registered office has been transferred, derived from those assets and liabilities of the SE or SCE which, in consequence, remain effectively connected with a permanent establishment of the SE or of the SCE in the Member State from which the registered office has been transferred and play a part in generating the profits or losses taken into account for tax purposes. 2. Paragraph 1 shall apply only if the SE or the SCE computes any new depreciation and any gains or losses in respect of the assets and liabilities that remain effectively connected with that permanent establishment, as though the transfer of the registered office had not taken place or the SE or the SCE had not so ceased to be tax resident. 3. Where, under the laws of the Member State from which the registered office was transferred, the SE or the SCE is entitled to have any new depreciation or any gains or losses in respect of the assets and liabilities remaining in that Member State computed on a basis different from that set out in paragraph 2, paragraph 1 shall not apply to the assets and liabilities in respect of which that option is exercised. Article 13 1. Where: (a) an SE or an SCE transfers its registered office from one Member State to another Member State; or (b) in connection with the transfer of its registered office from one Member State to another Member State, an SE or an SCE, which is resident in the first Member State, ceases to be resident in that Member State and becomes resident in another Member State; the Member States shall take the necessary measures to ensure that, where provisions or reserves properly constituted by the SE or the SCE before the transfer of the registered office are partly or wholly exempt from tax and are not derived from permanent establishments abroad, such provisions or reserves may be carried over, with the same tax exemption, by a permanent establishment of the SE or the SCE which is situated within the territory of the Member State from which the registered office was transferred. 2. To the extent that a company transferring its registered office within the territory of a Member State would be allowed to carry forward or carry back losses which had not been exhausted for tax purposes, that Member State shall allow the permanent establishment, situated within its territory, of the SE or of the SCE transferring its registered office, to take over those losses of the SE or SCE which have not been exhausted for tax purposes, provided that the loss carry forward or carry back would have been available in comparable circumstances to a company which continued to have its registered office or which continued to be tax resident in that Member State. Article 14 1. The transfer of the registered office of an SE or of an SCE shall not, of itself, give rise to any taxation of the income, profits or capital gains of the shareholders. 2. The application of paragraph 1 shall not prevent the Member States from taxing the gain arising out of the subsequent transfer of the securities representing the capital of the SE or of the SCE that transfers its registered office. CHAPTER VI FINAL PROVISIONS Article 15 1. A Member State may refuse to apply or withdraw the benefit of all or any part of the provisions of Articles 4 to 14 where it appears that one of the operations referred to in Article 1: (a) has as its principal objective or as one of its principal objectives tax evasion or tax avoidance; the fact that the operation is not carried out for valid commercial reasons such as the restructuring or rationalisation of the activities of the companies participating in the operation may constitute a presumption that the operation has tax evasion or tax avoidance as its principal objective or as one of its principal objectives; (b) results in a company, whether participating in the operation or not, no longer fulfilling the necessary conditions for the representation of employees on company organs according to the arrangements which were in force prior to that operation. 2. Paragraph 1(b) shall apply as long as and to the extent that no Community law provisions containing equivalent rules on representation of employees on company organs are applicable to the companies covered by this Directive. Article 16 Member States shall communicate to the Commission the texts of the main provisions of national law which they adopt in the field covered by this Directive. Article 17 Directive 90/434/EEC, as amended by the acts listed in Annex II, Part A, is repealed, without prejudice to the obligations of the Member States relating to the time-limits for transposition into national law and application of the Directives set out in Annex II, Part B. References to the repealed Directive shall be construed as references to this Directive and shall be read in accordance with the correlation table in Annex III. Article 18 This Directive shall enter into force on the 20th day following its publication in the Official Journal of the European Union. Article 19 This Directive is addressed to the Member States. Done at Luxembourg, 19 October 2009. For the Council The President E. ERLANDSSON (1) Opinion of 13 January 2009 (not yet published in the Official Journal). (2) OJ C 100, 30.4.2009, p. 153. (3) OJ L 225, 20.8.1990, p. 1. (4) See Annex II, Part A. (5) OJ L 294, 10.11.2001, p. 1. (6) OJ L 207, 18.8.2003, p. 1. ANNEX I PART A LIST OF COMPANIES REFERRED TO IN ARTICLE 3(a) (a) companies (SE) incorporated under Regulation (EC) No 2157/2001 and Council Directive 2001/86/EC of 8 October 2001 supplementing the Statute for a European company with regard to the involvement of employees (1) and cooperative societies (SCE) incorporated under Regulation (EC) No 1435/2003 and Council Directive 2003/72/EC of 22 July 2003 supplementing the Statute for a European Cooperative Society with regard to the involvement of employees (2); (b) companies under Belgian law known as ‘société anonyme’/‘naamloze vennootschap’, ‘société en commandite par actions’/‘commanditaire vennootschap op aandelen’, ‘société privée à responsabilité limitée’/‘besloten vennootschap met beperkte aansprakelijkheid’‘société coopérative à responsabilité limitée’/‘coöperatieve vennootschap met beperkte aansprakelijkheid’, ‘société coopérative à responsabilité illimitée’/‘coöperatieve vennootschap met onbeperkte aansprakelijkheid’, ‘société en nom collectif’/‘vennootschap onder firma’, ‘société en commandite simple’/‘gewone commanditaire vennootschap’, public undertakings which have adopted one of the abovementioned legal forms, and other companies constituted under Belgian law subject to the Belgian corporate tax; (c) companies under Bulgarian law known as ‘събирателното дружество’, ‘командитното дружество’, ‘дружеството с ограничена отговорност’, ‘акционерното дружество’, ‘командитното дружество с акции’, ‘кооперации’, ‘кооперативни съюзи’, and ‘държавни предприятия’ constituted under Bulgarian law and carrying on commercial activities; (d) companies under Czech law known as ‘akciová společnost’ and ‘společnost s ručením omezeným’; (e) companies under Danish law known as ‘aktieselskab’ and ‘anpartsselskab’ and other companies subject to tax under the Corporation Tax Act, in so far as their taxable income is calculated and taxed in accordance with the general tax legislation rules applicable to ‘aktieselskaber’; (f) companies under German law known as ‘Aktiengesellschaft’, ‘Kommanditgesellschaft auf Aktien’, ‘Gesellschaft mit beschränkter Haftung’, ‘Versicherungsverein auf Gegenseitigkeit’, ‘Erwerbs- und Wirtschaftsgenossenschaft’, ‘Betriebe gewerblicher Art von juristischen Personen des öffentlichen Rechts’, and other companies constituted under German law subject to German corporate tax; (g) companies under Estonian law known as ‘täisühing’, ‘usaldusühing’, ‘osaühing’, ‘aktsiaselts’ and ‘tulundusühistu’; (h) companies incorporated or existing under Irish law, bodies registered under the Industrial and Provident Societies Act, building societies incorporated under the Building Societies Acts and trustee savings banks within the meaning of the Trustee Savings Banks Act, 1989; (i) companies under Greek law known as ‘ανώνυμη εταιρεία’ and ‘εταιρεία περιορισμένης ευθύνης (Ε.Π.Ε.)’; (j) companies under Spanish law known as ‘sociedad anónima’, ‘sociedad comanditaria por acciones’, ‘sociedad de responsabilidad limitada’, and those public law bodies which operate under private law; (k) companies under French law known as ‘société anonyme’, ‘société en commandite par actions’, ‘société à responsabilité limitée’, ‘sociétés par actions simplifiées’, ‘sociétés d’assurances mutuelles’, ‘caisses d’épargne et de prévoyance’, ‘sociétés civiles’ which are automatically subject to corporation tax, ‘coopératives’, ‘unions de coopératives’, industrial and commercial public establishments and undertakings, and other companies constituted under French law subject to the French corporate tax; (l) companies under Italian law known as ‘società per azioni’, ‘società in accomandita per azioni’, ‘società a responsabilità limitata’, ‘società cooperative’, ‘società di mutua assicurazione’, and private and public entities whose activity is wholly or principally commercial; (m) companies (εταιρείες) under Cypriot law as defined in the income tax laws; (n) companies under Latvian law known as ‘akciju sabiedrība’ and ‘sabiedrība ar ierobežotu atbildību’; (o) companies incorporated under the law of Lithuania; (p) companies under Luxembourg law known as ‘société anonyme’, ‘société en commandite par actions’, ‘société à responsabilité limitée’, ‘société coopérative’, ‘société coopérative organisée comme une société anonyme’, ‘association d’assurances mutuelles’, ‘association d’épargne-pension’, ‘entreprise de nature commerciale, industrielle ou minière de l’État, des communes, des syndicats de communes, des établissements publics et des autres personnes morales de droit public’, and other companies constituted under Luxembourg law subject to the Luxembourg corporate tax; (q) companies under Hungarian law known as ‘közkereseti társaság’, ‘betéti társaság’, ‘közös vállalat’, ‘korlátolt felelősségű társaság’, ‘részvénytársaság’, ‘egyesülés’, ‘közhasznú társaság’ and ‘szövetkezet’; (r) companies under Maltese law known as ‘Kumpaniji ta’ Responsabilita Limitata’ and ‘Soċjetajiet en commandite li l-kapital tagħhom maqsum f’azzjonijiet’; (s) companies under Dutch law known as ‘naamloze vennootschap’, ‘besloten vennootschap met beperkte aansprakelijkheid’, ‘open commanditaire vennootschap’, ‘coöperatie’, ‘onderlinge waarborgmaatschappij’, ‘fonds voor gemene rekening’, ‘vereniging op coöperatieve grondslag’ and ‘vereniging welke op onderlinge grondslag als verzekeraar of kredietinstelling optreedt’, and other companies constituted under Dutch law subject to the Dutch corporate tax; (t) companies under Austrian law known as ‘Aktiengesellschaft’, ‘Gesellschaft mit beschränkter Haftung’, and ‘Erwerbs- und Wirtschaftsgenossenschaften’; (u) companies under Polish law known as ‘spółka akcyjna’ and ‘spółka z ograniczoną odpowiedzialnością’; (v) commercial companies or civil law companies having a commercial form as well as other legal persons carrying on commercial or industrial activities, which are incorporated under Portuguese law; (w) companies under Romanian law known as ‘societăți pe acțiuni’, ‘societăți în comandită pe acțiuni’ and ‘societăți cu răspundere limitată’; (x) companies under Slovenian law known as ‘delniška družba’, ‘komanditna družba’ and ‘družba z omejeno odgovornostjo’; (y) companies under Slovak law known as ‘akciová spoločnosť’, ‘spoločnosť s ručením obmedzeným’ and ‘komanditná spoločnosť’; (z) companies under Finnish law known as ‘osakeyhtiö’/‘aktiebolag’, ‘osuuskunta’/‘andelslag’, ‘säästöpankki’/‘sparbank’ and ‘vakuutusyhtiö’/‘försäkringsbolag’; (aa) companies under Swedish law known as ‘aktiebolag’, ‘bankaktiebolag’, ‘försäkringsaktiebolag’, ‘ekonomiska föreningar’, ‘sparbanker’ and ‘ömsesidiga försäkringsbolag’; (ab) companies incorporated under the law of the United Kingdom. PART B LIST OF TAXES REFERRED TO IN ARTICLE 3(C) — impôt des sociétés/vennootschapsbelasting in Belgium, — корпоративен данък in Bulgaria, — daň z příjmů právnických osob in the Czech Republic, — selskabsskat in Denmark, — Körperschaftssteuer in Germany, — tulumaks in Estonia, — corporation tax in Ireland, — φόρος εισοδήματος νομικών προσώπων κερδοσκοπικού χαρακτήρα in Greece, — impuesto sobre sociedades in Spain, — impôt sur les sociétés in France, — imposta sul reddito delle società in Italy, — φόρος εισοδήματος in Cyprus, — uzņēmumu ienākuma nodoklis in Latvia, — pelno mokestis in Lithuania, — impôt sur le revenu des collectivités in Luxembourg, — társasági adó in Hungary, — taxxa fuq l-income in Malta, — vennootschapsbelasting in the Netherlands, — Körperschaftssteuer in Austria, — podatek dochodowy od osób prawnych in Poland, — imposto sobre o rendimento das pessoas colectivas in Portugal, — impozit pe profit in Romania, — davek od dobička pravnih oseb in Slovenia, — daň z príjmov právnických osôb in Slovakia, — yhteisöjen tulovero/inkomstskatten för samfund in Finland, — statlig inkomstskatt in Sweden, — corporation tax in the United Kingdom. (1) OJ L 294, 10.11.2001, p. 22. (2) OJ L 207, 18.8.2003, p. 25. ANNEX II PART A Repealed Directive with list of its successive amendments (referred to in Article 17) Council Directive 90/434/EEC (OJ L 225, 20.8.1990, p. 1). Point XI(B)(I)(2) of Annex I to the 1994 Act of Accession (OJ C 241, 29.8.1994, p. 196) Point 9.7 of Annex II to the 2003 Act of Accession (OJ L 236, 23.9.2003, p. 559). Council Directive 2005/19/EC (OJ L 58, 4.3.2005, p. 19). Council Directive 2006/98/EC (OJ L 363, 20.12.2006, p. 129). only point 6 of the Annex PART B List of time-limits for transposition into national law and application (referred to in Article 17) Directive Time-limit for transposition Date of application 90/434/EEC 1 January 1992 1 January 1993 (1) 2005/19/EC 1 January 2006 (2) 1 January 2007 (3) — 2006/98/EC 1 January 2007 — (1) Applicable to the Portuguese Republic only. (2) As regards the provisions referred to in Article 2(1) of the Directive. (3) As regards the provisions referred to in Article 2(2) of the Directive. ANNEX III Correlation Table Directive 90/434/EEC This Directive Article 1 Article 1 Article 2(a) first indent Article 2(a)(i) Article 2(a) second indent Article 2(a)(ii) Article 2(a) third indent Article 2(a)(iii) Article 2(b) Article 2(b) Article 2(b)(a) Article 2(c) Article 2(c) Article 2(d) Article 2(d) Article 2(e) Article 2(e) Article 2(f) Article 2(f) Article 2(g) Article 2(g) Article 2(h) Article 2(h) Article 2(i) Article 2(i) Article 2(j) Article 2(j) Article 2(k) Article 3(a) Article 3(a) Article 3(b) Article 3(b) Article 3(c), introductory phrase of the first subparagraph and second subparagraph Article 3(c) Article 3(c), first subparagraph, first to twenty-seventh indents Annex I, Part B Article 4(1) first subparagraph Article 4(1) Article 4(1) second subparagraph Article 4(2) Article 4(2) Article 4(3) Article 4(3) Article 4(4) Article 4(4) Article 4(5) Articles 5 and 6 Articles 5 and 6 Article 7(1) Article 7(1) Article 7(2), first subparagraph Article 7(2), first subparagraph Article 7(2), second subparagraph, first sentence — Article 7(2), second subparagraph, second sentence Article 7(2), second subparagraph Articles 8, 9 and 10 Articles 8, 9 and 10 Article 10a Article 11 Article 10b Article 12 Article 10c Article 13 Article 10d Article 14 Article 11 Article 15 Article 12(1) — Article 12(2) — Article 12(3) Article 16 — Article 17 — Article 18 Article 13 Article 19 Annex Annex I, Part A — Annex II — Annex III

Summary: Common system of taxation: mergers, divisions, transfers of assets, exchanges of shares and transfer of the registered office of an SE or SCE Common system of taxation: mergers, divisions, transfers of assets, exchanges of shares and transfer of the registered office of an SE or SCE This Directive introduces a common system of taxation for cross-border restructuring operations. ACT 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. SUMMARY This Directive applies to: mergers, divisions, transfers of assets and exchanges of shares in which companies from two or more EU countries are involved; the transfer of the registered office between EU countries of a Societas Europaea (European Company) (SE) or aEuropean Cooperative Society (SCE). Rules applicable to mergers, divisions, partial divisions, transfers of assets and exchanges of shares A merger, division or partial division does not give rise to any taxation of capital gains - calculated by reference to the difference between the real values of the assets and liabilities transferred and their values for tax purposes - at the time of the operation in question but only when such gains are actually realized. EU countries are required to take the necessary measures to ensure that provisions or reserves partly or wholly exempt from tax may be carried over by the permanent establishments of the receiving company which are situated in the Member State of the transferring company. The allotment of securities representing the capital of the receiving or acquiring company to a shareholder of the transferring or acquired company must not give rise to any taxation of the income, profits or capital gains of that shareholder. Rules applicable to the transfer of the registered office of an SE or SCE Where an SE or an SCE transfers its registered office from one EU country to another or becomes resident in another EU country, that transfer shall not give rise to any taxation of the income, profits or capital gains of the shareholders. However, EU countries may tax the gain arising out of the subsequent transfer of the securities representing the capital of the SE or of the SCE that transfers its registered office. In the same case, EU countries shall take the necessary measures to ensure that, where provisions or reserves properly constituted by the SE or the SCE before the transfer of the registered office are partly or wholly exempt from tax and are not derived from permanent establishments abroad, such provisions or reserves may be carried over, with the same tax exemption, by a permanent establishment of the SE or the SCE which is situated within the territory of the EU country from which the registered office was transferred. This Directive repeals Directive 90/434/EC. REFERENCES Act Entry into force Deadline for transposition in the Member States Official Journal Directive 2009/133/EC 15.12.2099 - OJ L 310, 25.11.2009 Directive 2013/13/EU 01.7.2013 - OJ L 141, 28.5.2013 RELATED ACTS 2012/772/EU : Commission Recommendation of 6 December 2012 on aggressive tax planning [Official Journal L 338 of 12.12.2012]. Aggressive tax planning consists in taking advantage of the technicalities of a tax system or of mismatches between two or more tax systems for the purpose of reducing tax liability. The aim of the recommendation is to encourage EU countries to ensure that the conventions aiming to avoid double taxation do not lead to non-taxation and to adopt a common general anti-abuse rule to counteract practices such as artificial arrangements. Last updated: 21.04.2014


10.6.2009 EN Official Journal of the European Union L 145/36 COUNCIL DIRECTIVE 2009/55/EC of 25 May 2009 on tax exemptions applicable to the permanent introduction from a Member State of the personal property of individuals (Codified version) THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty establishing the European Community, and in particular Article 93 thereof, Having regard to the proposal from the Commission, Having regard to the Opinion of the European Parliament (1), Having regard to the opinion of the European Economic and Social Committee (2), Whereas: (1) Council Directive 83/183/EEC of 28 March 1983 on tax exemptions applicable to permanent imports from a Member State of the personal property of individuals (3) has been substantially amended several times (4). In the interests of clarity and rationality the said Directive should be codified. (2) In order for the people of the Member States to become more aware of the activities of the Community, measures to benefit private individuals should be maintained in order to ensure internal market conditions in the Community. (3) In particular, the tax obstacles to the introduction by private individuals of personal property into one Member State from another Member State are such as to hinder the free movement of persons within the Community. Therefore, these obstacles should be eliminated as far as possible by the introduction of tax exemptions. (4) Those tax exemptions may apply only to the introduction of goods which are not of a commercial or speculative nature. The application of the exemptions should therefore be made subject to limits and conditions. (5) The adoption of harmonising measures with regard to excise duty and value added tax has made rules on tax exemptions and duty-free allowances superfluous in those areas. (6) This Directive should be without prejudice to the obligations of the Member States relating to the time limits for transposition into national law of the Directives set out in Annex I, Part B, HAS ADOPTED THIS DIRECTIVE: CHAPTER I GENERAL PROVISIONS Article 1 Scope 1. Every Member State shall, subject to the conditions and in the cases hereinafter set out, exempt personal property introduced permanently from another Member State by private individuals from consumption taxes which normally apply to such property. 2. The following shall not be covered by this Directive: (a) value added tax; (b) excise duty; (c) specific and/or periodical duties and taxes connected with the use within the country of property referred to in paragraph 1, such as for instance motor vehicle registration fees, road taxes and television licences. Article 2 Conditions relating to property 1. For the purposes of this Directive, ‘personal property’ means property for the personal use of the persons concerned or the needs of their household. Such property must not, by reason of its nature or quantity, reflect any commercial interest, nor be intended for an economic activity within the meaning of Article 9(1) and Articles 10 to 13 of Council Directive 2006/112/EC (5). However, the tools or instruments necessary to the person concerned for the exercise of his trade or profession shall also be treated as personal property. 2. The exemption for which Article 1 makes provision shall be granted for personal property: (a) which has been acquired under the general conditions of taxation in force in the domestic market of one of the Member States and which is not the subject, on the grounds of exit from the Member State of origin, of any exemption or any refund of consumption tax. For the purposes of this Directive, goods acquired under the conditions referred to in Article 151 of Directive 2006/112/EC with the exception of point (e) of the first subparagraph of paragraph 1 thereof shall be deemed to have met those conditions; (b) of which the person concerned has had the actual use before the change of residence is effected or the secondary residence established. In the case of motor-driven road vehicles (including their trailers), caravans, mobile homes, pleasure boats and private aircraft, Member States may require that the person concerned should have had the use of them for a period of at least six months before the change of residence. For the goods referred to in the second sentence of point (a), Member States may require: (i) in the case of motor-driven road vehicles (including their trailers), caravans, mobile homes, pleasure boats and private aircraft, that the person concerned should have had the use of them for a period of at least 12 months before the change of residence; (ii) in the case of other goods, that the person concerned should have had the use of them for a period of at least six months before the change of residence. 3. The competent authorities shall demand proof that the conditions in paragraph 2 have been satisfied in the case of motor-driven road vehicles (including their trailers), caravans, mobile homes, pleasure boats and private aircraft. In the case of other property, they shall demand such proof only where there are grave suspicions of fraud. Article 3 Introduction conditions The introduction of the property may be carried out all at once or in stages within the periods laid down in Articles 7 to 10 respectively. Article 4 Obligations subsequent to introduction The motor-driven road vehicles (including their trailers), caravans, mobile homes, pleasure boats and private aircraft introduced shall not be disposed of, hired out or lent during the period of 12 months following their tax exempt introduction, except in circumstances duly justified to the satisfaction of the competent authorities of the Member State of destination. Article 5 Specific conditions for certain types of property The exemption on the introduction of riding horses, motor-driven road vehicles (including their trailers), caravans, mobile homes, pleasure boats and private aircraft shall be granted only if the private individual transfers his normal residence to the Member State of destination. Article 6 General rules for determining residence 1. For the purposes of this Directive, ‘normal residence’ means the place where a person usually lives, that is for at least 185 days in each calendar year, because of personal and occupational ties or, in the case of a person with no occupational ties, because of personal ties which show close links between that person and the place where he is living. However, the normal residence of a person whose occupational ties are in a different place from his personal ties and who consequently lives in turn in different places situated in two or more Member States shall be regarded as being the place of his personal ties, provided that such person returns there regularly. This last condition need not be met where the person is living in a Member State in order to carry out a task of a definite duration. Attendance at a university or school shall not imply transfer of normal residence. 2. Individuals shall give proof of their place of normal residence by any appropriate means, such as their identity card or any other valid document. 3. Where the competent authorities of the Member State of destination have doubts as to the validity of a statement as to normal residence made in accordance with paragraph 2, or for the purpose of certain specific controls, they may ask for any information they require or for additional proof. CHAPTER II INTRODUCTION OF PERSONAL PROPERTY IN CONNECTION WITH A TRANSFER OF NORMAL RESIDENCE Article 7 1. The exemption for which Article 1 makes provision shall be granted, subject to the conditions laid down in Articles 2 to 5, in respect of personal property introduced by a private individual when transferring his normal residence. The grant of the exemption shall, without prejudice to any Community transit procedure which may apply, be subject to the drawing-up of an inventory of the property on plain paper accompanied, if the State so requires, by a declaration, the model for and content of which shall be defined in accordance with the procedure referred to in Article 248a(2) of Council Regulation (EEC) No 2913/92 (6). No reference to value may be demanded on the inventory of the property. 2. The last of the property must be introduced not later than 12 months after the transfer of normal residence. Where, in accordance with Article 3, the property is introduced in stages within that period, only on the occasion of the first introduction may Member States require the submission of a full inventory to which reference may also be made in the event of subsequent removals by other customs offices. Such inventory may be supplemented subject to the agreement of the competent authorities of the Member State of destination. CHAPTER III INTRODUCTION OF PERSONAL PROPERTY IN CONNECTION WITH THE FURNISHING OR RELINQUISHMENT OF A SECONDARY RESIDENCE Article 8 1. The exemption for which Article 1 makes provision shall be granted, subject to the conditions laid down in Articles 2 to 5, for personal property introduced by a private individual to furnish a secondary residence. This exemption shall be granted only where: (a) the person concerned is the owner of the secondary residence or is renting it for a period of at least 12 months; (b) the property introduced corresponds to the normal furniture of the secondary residence. 2. The exemption shall also be granted, subject to the conditions mentioned in paragraph 1, where, following the relinquishment of a secondary residence, property is introduced to the normal residence or to another secondary residence, provided that the property in question has actually been in the possession of the person concerned, and that he has had the use of it, before establishment of a second residence. The last of the property must be introduced not later than 12 months after the secondary residence has been relinquished. CHAPTER IV INTRODUCTION OF PROPERTY ON MARRIAGE Article 9 1. Without prejudice to Articles 2 to 5, any person shall on marrying be entitled to exemption from the taxes referred to in Article 1(1) when introducing into the Member State to which he intends to transfer his normal residence personal property which he has acquired or of which he has had the use, provided that: (a) such introduction takes place within a period beginning two months before the marriage date envisaged and ending four months after the actual marriage date; (b) the person concerned provides evidence that his marriage has taken place or that the necessary preliminary formalities for the marriage have been undertaken. 2. Exemption shall also be granted in respect of presents customarily given on the occasion of a marriage which are received by a person fulfilling the conditions laid down in paragraph 1 from persons having their normal place of residence in a Member State other than the Member State of destination. The exemption shall apply to presents of a unit value of not more than EUR 350. Member States may, however, grant an exemption of more than EUR 350, provided that the value of each exempt present does not exceed EUR 1 400. 3. Member States may make the granting of the exemption dependent on the provision of an adequate guarantee, where property is introduced before the date of the marriage. 4. Where the individual fails to provide proof of his marriage within four months of the date given for such marriage, the taxes shall be due on the date of introduction. CHAPTER V INTRODUCTION OF THE PERSONAL PROPERTY OF A DECEASED PERSON, ACQUIRED BY INHERITANCE Article 10 By way of derogation from Articles 2(2) and (3), 4 and 5(2), but without prejudice to the other provisions contained in Articles 2, 3 and 5, any private individual who acquires by inheritance (causa mortis) the ownership or the beneficial ownership of personal property of a deceased person which is situated within a Member State shall be entitled to exemption from the taxes referred to in Article 1(1) when introducing such property into another Member State in which he has a residence, provided that: (a) such individual provides the competent authorities of the Member State of destination with a declaration issued by a notary or other competent authority in the Member State of origin that the property he is introducing has been acquired by inheritance; (b) the property is introduced not more than two years after the date on which such individual enters into possession of the property. CHAPTER VI FINAL PROVISIONS Article 11 1. Member States shall endeavour to reduce as far as possible the introduction formalities for private individuals within the limits and subject to the conditions laid down in this Directive and shall endeavour to avoid introduction formalities entailing controls which result in substantial unloading and reloading at the entry into the Member State of destination. 2. Member States may retain and/or introduce more liberal conditions for granting tax exemptions than those laid down in this Directive, with the exception of those laid down in Article 2(2)(a). 3. Without prejudice to Article 2(2), Member States may not, by virtue of this Directive, apply within the Community tax exemptions less favourable than those which they accord to imports by private individuals of personal property from third countries. Article 12 1. Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive, and in particular any resulting from the application of the provisions of Article 11(2) and (3). The Commission shall inform the other Member States thereof. 2. Every two years the Commission shall, after consulting the Member States, send the European Parliament and the Council a report on the implementation of this Directive in the Member States. Article 13 Directive 83/183/EEC, as amended by the Directives listed in Annex I, Part A, is repealed, without prejudice to the obligations of the Member States relating to the time limits for transposition into national law of the Directives set out in Annex I, Part B. References to the repealed Directive shall be construed as references to this Directive and shall be read in accordance with the correlation table in Annex II. Article 14 This Directive shall enter into force on the 20th day following its publication in the Official Journal of the European Union. Article 15 This Directive is addressed to the Member States. Done at Brussels, 25 May 2009. For the Council The President J. ŠEBESTA (1) Opinion of 16 December 2008 (not yet published in the Official Journal). (2) Opinion of 17 September 2008, OJ C 77, 31.3.2009, p. 148. (3) OJ L 105, 23.4.1983, p. 64. (4) See Annex I, Part A. (5) OJ L 347, 11.12.2006, p. 1. (6) OJ L 302, 19.10.1992, p. 1. ANNEX I PART A Repealed Directive with list of its successive amendments (referred to in Article 13) Council Directive 83/183/EEC (OJ L 105, 23.4.1983, p. 64). Council Directive 89/604/EEC (OJ L 348, 29.11.1989, p. 28). Council Directive 91/680/EEC (OJ L 376, 31.12.1991, p. 1). Only as regards Article 2(2), third indent Council Directive 92/12/EEC (OJ L 76, 23.3.1992, p. 1). Only as regards Article 23(3), second indent PART B List of time limits for transposition into national law (referred to in Article 13) Directive Time limit for transposition 83/183/EEC 1 January 1984 89/604/EEC 1 July 1990 91/680/EEC 1 January 1993 (1) 92/12/EEC 1 January 1993 (2) (1) Member States shall bring into force such laws, regulations and administrative provisions as are necessary for their arrangements thus adapted to Article 1, points 1 to 20 and points 22, 23 and 24 and Article 2 of Directive 91/680/EEC to enter into force on 1 January 1993. (2) With regard to Article 9(3) the Kingdom of Denmark is authorised to introduce the laws, regulations and administrative provisions required for complying with this provision by 1 January 1993 at the latest. ANNEX II CORRELATION TABLE Directive 83/183/EEC This Directive Article 1(1) Article 1(1) — Article 1(2), point (a) — Article 1(2), point (b) Article 1(2) Article 1(2), point (c) Article 2(1) Article 2(1) Article 2(2), first subparagraph, point (a) Article 2(2), first subparagraph, point (a) Article 2(2), first subparagraph, point (b) Article 2(2), first subparagraph, point (b) Article 2(2), second subparagraph, introductory wording Article 2(2), second subparagraph, introductory wording Article 2(2), second subparagraph, first indent Article 2(2), second subparagraph, point (i) Article 2(2), second subparagraph, second indent Article 2(2), second subparagraph, point (ii) Article 2(2), second subparagraph, final wording — Article 2(3) Article 2(3) Article 3 Article 3 Article 4 Article 4 Article 5(1) — Article 5(2) Article 5 Article 6 Article 6 Article 7(1)(a) Article 7(1), first subparagraph Article 7(1)(b) Article 7(1), second subparagraph Article 7(2) Article 7(2) Article 8(1), first subparagraph Article 8(1), first subparagraph Article 8(1), second subparagraph, introductory wording Article 8(1), second subparagraph, introductory wording Article 8(1), second subparagraph, points (i) and (ii) Article 8(1), second subparagraph, points (a) and (b) Article 8(2) Article 8(2) Articles 9, 10 and 11 Articles 9, 10 and 11 Article 12(1) — Article 12(2) Article 12(1) Article 12(3) Article 12(2) — Article 13 — Article 14 Article 13 Article 15 — Annex I — Annex II

Summary: Tax-free allowances: permanent imports of personal property Tax-free allowances: permanent imports of personal property SUMMARY OF: Directive 2009/55/EC on tax exemptions applicable to the permanent introduction from an EU country of individuals’ personal property WHAT IS THE AIM OF THE DIRECTIVE? Its aim is to codify Directive 83/183/EEC on tax exemptions that apply to the permanent import of individuals’ personal property* from another EU country. KEY POINTS This directive provides an exemption for personal property which is permanently introduced from another EU country by private individuals from consumption taxes which would normally apply to such property. This property must neither have a commercial nature nor be intended for an economic activity. The tools necessary for the exercise of a person’s trade or profession are, however, to be treated as personal property. Riding horses, motor-driven road vehicles (including their trailers), caravans, mobile homes, pleasure boats and private aircraft may only be granted exemption if the private individual concerned transfers their normal residence* to the EU country of destination. Motor-driven road vehicles (including their trailers), caravans, mobile homes, pleasure boats and private aircraft must not be disposed of, hired out or lent during the 12 months following their tax-exempt introduction, except in circumstances justified to the satisfaction of the competent authorities in the EU country of destination. The introduction of the property may be undertaken all at once or in stages, and for any of the following reasons: in connection with a transfer of normal residence: all of the property must be introduced within 12 months of the transfer of normal residence; in connection with the furnishing or relinquishment of a secondary residence: the property must correspond to the normal furniture of the secondary residence and the person concerned must be the owner of the secondary residence or be renting it for a period of at least 12 months; on the occasion of a marriage: the property must be introduced between 2 months before the marriage date envisaged and 4 months after the actual marriage date, and proof of marriage must be provided; acquired by inheritance: the property must be introduced within 2 years of the date on which the person concerned enters into possession of the property, and proof must be provided that the property was acquired by inheritance. With the exception of certain goods, EU countries have the right to retain or introduce more liberal conditions for granting tax exemptions than those contained in this directive. FROM WHEN DOES THE DIRECTIVE APPLY? It has applied since 30 June 2009. Directive 2009/55/EC codifies and replaces Directive 83/183/EEC which had to become law in the EU countries by 1 January 1984. KEY TERMS Personal property: property for the personal use of the persons concerned or the needs of their household. Normal residence: the place where a person usually lives (for at least 185 days in each calendar year) because of personal and occupational ties, or in the case of a person with no occupational ties, because of personal ties which show close links between that person and the place where he/she is living. MAIN DOCUMENT Council Directive 2009/55/EC of 25 May 2009 on tax exemptions applicable to the permanent introduction from a Member State of the personal property of individuals (Codified version) (OJ L 145, 10.6.2009, pp. 36-41) last update 05.11.2018


22.1.2010 EN Official Journal of the European Union L 17/43 COUNCIL DECISION of 27 November 2009 on the European Year of Voluntary Activities Promoting Active Citizenship (2011) (2010/37/EC) THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty establishing the European Community, and in particular Article 308 thereof, Having regard to the proposal from the Commission, Having regard to the Opinion of the European Parliament (1), Whereas: (1) The Treaty establishes citizenship of the European Union (EU), which complements national citizenship of the respective Member States and is an important element in strengthening and safeguarding the process of European integration. (2) Encouraging active citizenship is a key element in strengthening cohesion and the development of democracy. (3) The European Year of Voluntary Activities promoting active citizenship will contribute to showing that volunteering is one of the key dimensions of active citizenship and democracy, putting European values such as solidarity and non-discrimination into action and as such contributing to the harmonious development of European societies. (4) Voluntary activities constitute a rich learning experience, enable the development of social skills and competences and contribute to solidarity. Actions carried out by volunteers of all ages are crucial to the development of democracy, one of the founding principles of the EU. Voluntary activities have the potential to contribute to the well-being of individuals and the harmonious development of European societies. (5) Having due regard to the particularities of the situation in each Member State and all forms of volunteering, the term ‘voluntary activities’ refers to all types of voluntary activity, whether formal, non-formal or informal which are undertaken of a person’s own free will, choice and motivation, and is without concern for financial gain. They benefit the individual volunteer, communities and society as a whole. They are also a vehicle for individuals and associations to address human, social, intergenerational or environmental needs and concerns, and are often carried out in support of a non-profit organisation or community-based initiative. Voluntary activities do not replace professional, paid employment opportunities but add value to society. (6) In fast-changing societies there is a need to ensure effective support measures for voluntary activities to allow more people to engage in voluntary activities. It is therefore important to support peer learning and the exchange and development of good practices at local, regional, national and Community levels. (7) The 1997 Intergovernmental Conference adopted Declaration 38 on voluntary activities, which was attached to the Final Act of the Treaty of Amsterdam and recognises the important contribution made by voluntary service activities to developing social solidarity. (8) In its Communication of June 1997 on promoting the role of voluntary organisations and foundations in Europe, the Commission emphasised three aspects of voluntary organisations and foundations: the economic aspect of creating jobs; the social aspect of helping to define social policies and thereby contributing to social progress; and the political aspect, fostering democracy, citizenship and civic participation. (9) In the Resolutions of the Council and the Representatives of the Governments of the Member States meeting within the Council of 27 June 2002 and of 16 November 2007 and in the Recommendation of 20 November 2008, the Council and the Member States recognised voluntary activities as a key aspect in the field of youth and agreed on common objectives for voluntary activities of young people as well as on the mobility of young people across the EU. (10) In its Opinion of 13 December 2006‘Voluntary activity: its role in European society and its impact’ (2), the European Economic and Social Committee asked the Commission to announce a Year of Volunteers, and to publish a White Paper on voluntary activity and active citizenship in Europe at the earliest opportunity. (11) In March 2008, the European Parliament adopted a report on the ‘Role of voluntary activities in contributing to economic and social cohesion’ which encouraged Member States and regional and local authorities to recognise the value of voluntary activities in promoting social and economic cohesion. (12) In July 2008 the European Parliament adopted a written Declaration calling for a European Year of Volunteering in 2011. (13) Voluntary activities are targeted by several community programmes and networks that focus, inter alia, on mobility in voluntary activities for people of all ages, such as the Lifelong Learning Programme (3), the programme ‘Europe for Citizens’ (4) and the European Voluntary Service of the Youth in Action Programme (5). (14) There exists a large variety of voluntary activities throughout Europe which should be preserved and developed further. (15) The potential of voluntary activities is still not fully realised. A European Year of Voluntary activities promoting active citizenship will provide the opportunity to demonstrate in a European context that voluntary activities increase civic participation and can help foster a sense of belonging and commitment of citizens to their society at all levels — local, regional, national and European. (16) The Year of Voluntary activities promoting active citizenship could also contribute to addressing gender inequalities in the voluntary sector, for example regarding the sectors and activities in which men and women participate or concerning representation in voluntary leadership positions. (17) The year 2011 will be the tenth anniversary of the 2001 International Year of Volunteers of the United Nations. (18) This Decision establishes a financial envelope, which is to constitute the prime reference for the budgetary authority within the meaning of point 37 of the Interinstitutional Agreement of 17 May 2006 between the European Parliament, the Council and the Commission on budgetary discipline and sound financial management (6). (19) The objectives of the proposed European Year cannot be fully achieved at Member State level due to the need for transnational exchange of information and the Community-wide dissemination of good practice, and can therefore, by reason of the scale of the proposed action, be better achieved at Community level. In accordance with the principle of proportionality, as set out in Article 5 of the Treaty, this Decision does not go beyond what is necessary to achieve those objectives, HAS ADOPTED THIS DECISION: Article 1 Subject The year 2011 shall be designated as the European Year of Voluntary activities promoting active citizenship (hereinafter referred to as ‘the European Year’). Article 2 Objectives The overall purpose of the European Year shall be to encourage and support — notably through the exchange of experience and good practices — the efforts of the Community, the Member States, local and regional authorities to create the conditions for civil society conducive to volunteering in the European Union (EU) and to increase the visibility of voluntary activities in the EU. The objectives of the European Year shall be to: 1. work towards an enabling environment for volunteering in the EU in order to anchor volunteering as part of promoting civic participation and people-to-people activities in an EU context and address existing obstacles to voluntary activities, where appropriate and necessary; 2. empower organisers of voluntary activities to improve the quality of voluntary activities in order to facilitate voluntary activities and help organisers to implement new types of voluntary activities and to encourage networking, mobility, cooperation and synergies within civil society and between civil society and other sectors in an EU context; 3. recognise voluntary activities in order to encourage appropriate incentives for individuals, companies and volunteer-development organisations and gain recognition for volunteering at EU level and in the Member States by policymakers, civil society organisations, public institutions, the formal and non-formal education sector and employers for skills and competences developed through volunteering; 4. raise awareness of the value and importance of volunteering in order to raise general awareness of the importance of volunteering as an expression of civic participation which contributes to issues which are of common concern of all Member States, such as a harmonious societal development and social cohesion. Article 3 Initiatives involved 1. The measures to be taken to achieve the objectives set out in Article 2 may include the following initiatives organised at Community, national, regional or local level linked to the objectives of the European Year: (a) exchange of experience and good practices; (b) undertaking of studies and research as well as dissemination of their results; (c) conferences and events to promote debate and raise awareness of the importance and value of voluntary activities stimulating the engagement of citizens and to celebrate the efforts of volunteers and their organisations; (d) concrete initiatives in the Member States aimed at promoting the objectives of the European Year; at least 25 % of the total budget of the year will be used for this purpose; (e) information and promotion campaigns to disseminate key messages. Details of the measures referred to in the first subparagraph are set out in the Annex. 2. Community funding for projects may be given through existing Community programmes. Article 4 Cooperation with the Member States By 28 February 2010 each Member State shall designate a body responsible for organising its participation in the European Year (hereinafter referred to as ‘the national coordinating body’) and shall inform the Commission of that designation. In carrying out its actions, in particular when drawing up the national programme, the national coordinating body shall closely consult and cooperate with a wide range of relevant stakeholders, including civil society organisations and where appropriate the national agencies or contact points of relevant Community programmes. The national programme and priorities of the European Year shall be set out in accordance with the objectives listed in Article 2 and the details of measures set out in the Annex. Article 5 Coordination at Community level and implementation The Commission shall convene meetings of the national coordinating bodies to coordinate implementation of the European Year and to exchange information on implementation at national level. The Commission shall also convene meetings of representatives of European organisations or bodies active in the field of volunteering and stakeholders to assist the Commission in implementing the European Year at Community level. The Commission shall implement the European Year at Community level. The Member States, the European Parliament, the European Economic and Social Committee and the Committee of the Regions shall be associated in the activities. Article 6 Financial provisions 1. Measures which are Community-wide in nature, referred to in Part A of the Annex, shall give rise to a procurement contract or the award of grants financed from the general budget of the European Communities. 2. Measures which are Community-wide in nature, referred to in Part B of the Annex, may be co-financed from the general budget of the European Communities. 3. The Commission shall give a grant to each national coordinating body in accordance with the procedure set out in Part C of the Annex. Article 7 Budget 1. The financial envelope for the implementation of this Decision for the period from 1 January 2011 to 31 December 2011 shall be EUR 8 000 000. 2. Annual appropriations shall be authorised by the budgetary authority within the limits of the financial framework. Article 8 International cooperation For the purpose of the European Year, the Commission may cooperate with relevant international organisations, in particular with the United Nations and the Council of Europe, while ensuring the visibility of the EU’s participation. Article 9 Consistency and complementarity The Commission together with the Member States shall ensure that the measures provided for in this Decision are consistent with other Community, national and regional schemes and initiatives that help attain the objectives of the European Year. Article 10 Protection of Community financial interests 1. The Commission shall ensure that, when actions financed under this Decision are implemented, the financial interests of the Community are protected by the application of preventive measures against fraud, corruption and any other illegal activities, by effective checks and by the recovery of the amounts unduly paid and, if irregularities are detected, by effective, proportional and dissuasive penalties, in accordance with Council Regulation (EC, Euratom) No 2988/95 of 18 December 1995 on the protection of the European Communities financial interests (7), Council Regulation (Euratom, EC) No 2185/96 of 11 November 1996 concerning the on-the-spot checks and inspections carried out by the Commission in order to protect the European Communities' financial interests against fraud and other irregularities (8), and with Regulation (EC) No 1073/1999 of the European Parliament and of the Council of 25 May 1999 concerning investigations conducted by the European Anti-Fraud Office (OLAF) (9). 2. With regard to the Community actions financed under this Decision, the notion of irregularity referred to in Article 1(2) of Regulation (EC, Euratom) No 2988/95 shall mean any infringement of a provision of Community law or any infringement of a contractual obligation resulting from an act or omission by an economic operator which has, or would have, the effect of prejudicing the general budget of the Communities, or budgets managed by them, by an unjustified item of expenditure. 3. The Commission shall reduce, suspend or recover the amount of financial assistance granted for an action if it finds irregularities, particularly non-compliance with the provisions of this Decision or of the individual decision or contract granting the financial support in question, or in the event that, without Commission approval having being sought, the action has undergone significant change that conflicts with its nature or with its implementing conditions. 4. If the time-limits have not been observed or if only part of the allocated financial assistance is justified by the progress made with implementing an action, the Commission shall request the beneficiary to submit observations within a specified period. If the beneficiary does not give a satisfactory answer, the Commission may cancel the remaining financial assistance and demand repayment of amounts already paid. 5. Any amount unduly paid shall be repaid to the Commission. Interest shall be added to any amount not repaid in due time under the conditions laid down in Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (10). Article 11 Monitoring and evaluation By 31 December 2012, the Commission shall submit a report to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on the implementation, results and overall assessment of the initiatives provided for in this Decision. Article 12 Entry into force This Decision shall enter into force on the day following its publication in the Official Journal of the European Union. This Decision is addressed to the Member States. Done at Brussels, 27 November 2009. For the Council The President L. ADELSOHN LILJEROTH (1) Opinion of the European Parliament of 26 November 2009 (not yet published in the Official Journal). (2) OJ C 325, 30.12.2006, p. 46. (3) Decision No 1720/2006/EC of the European Parliament and of the Council of 15 November 2006 establishing an action programme in the field of lifelong learning (OJ L 327, 24.11.2006, p. 45). (4) Decision No 1904/2006/EC of the European Parliament and of the Council of 12 December 2006 establishing for the period 2007 to 2013 the programme Europe for Citizens to promote active European citizenship (OJ L 378, 27.12.2006, p. 32). (5) Decision No 1719/2006/EC of the European Parliament and of the Council of 15 November 2006 establishing the Youth in Action Programme for the period 2007 to 2013 (OJ L 327, 24.11.2006, p. 30). (6) OJ C 139, 14.6.2006, p. 1. (7) OJ L 312, 23.12.1995, p. 1. (8) OJ L 292, 15.11.1996, p. 2. (9) OJ L 136, 31.5.1999, p. 1. (10) OJ L 248, 16.9.2002, p. 1. ANNEX Details of the measures referred to in Article 3 As a guiding principle, implementation of the European Year will build on the ownership, large-scale mobilisation and active involvement of civil society and other stakeholders. In addition, implementation will be carried out through the following measures: A. DIRECT COMMUNITY INITIATIVES Financing will generally take the form of direct purchase of goods and services under existing framework contracts. It may also take the form of grants. 1. Information and promotion campaigns including: — high visibility events and forums for exchanging experience and good practices, — contests with or without prizes, — cooperation with the private sector, broadcasters and other media as partners for disseminating information on voluntary activities and the European Year, — the production of material and tools for media available throughout the EU to stimulate public interest, — measures to publicise the results and raise the profile of Community programmes, schemes and initiatives contributing to the objectives of the European Year, — the establishment of an information website on the Europa site, including a portal for promoters of projects on volunteering, to guide them through the various Community programmes and initiatives. 2. Other initiatives: — surveys and studies at Community level to assess and report on the preparation, effectiveness, impact and long-term monitoring of the European Year. B. CO-FINANCING COMMUNITY INITIATIVES High-visibility events on a European scale that aim to raise awareness of the objectives of the European Year, possibly organised in cooperation with the Presidencies in office during 2011, may receive a Community grant of up to 80 % of the total eligible cost. C. CO-FINANCING NATIONAL INITIATIVES Each national coordinating body shall submit a single application for Community funding. That grant application shall describe the national coordinating body’s work programme or the action to be funded and promote the European Year. The grant application shall be accompanied by a detailed budget setting out the total costs of the initiatives/work programme proposed and the amount and sources of co-funding. The Community grant can cover up to 80 % of the total eligible cost. The Commission shall determine the indicative amounts available for grants to each national coordinating body and the deadline for submission of the applications. The criteria should take into account the population, the cost of living and a fixed amount per Member State to guarantee a minimum level of activities. The final amounts awarded shall be determined on the basis of the individual grant applications submitted by the national coordinating body. The maximum Community co-financing is set at 80 % of the total eligible cost. The work programmes/actions may include: — meetings and events connected with the objectives of the European Year, including national events to launch and promote the European Year, create a catalyst effect and provide open space for debate on concrete initiatives, — conferences and seminars at national, regional and local levels allowing for mutual learning and exchange of good practices, — information, research activities and related studies, educational and promotional campaigns at national, regional and local levels, including the organisation of awards and competitions, — cooperation with the media. D. INITIATIVES NOT RECEIVING ANY COMMUNITY FINANCIAL ASSISTANCE The Community will grant non-financial support, including written authorisation to use the logo, once developed, and other materials associated with the European Year, to initiatives carried out by public or private organisations, in so far as they provide assurances to the Commission that the initiatives in question are or will be carried out during 2011 and are likely to make a significant contribution to achieving the objectives of the European Year.

Summary: European Year of Voluntary Activities Promoting Active Citizenship (2011) European Year of Voluntary Activities Promoting Active Citizenship (2011) This decision designates the year 2011 as the European Year of Voluntary Activities Promoting Active Citizenship. With a view to developing social solidarity and democracy, the Year aims to create conditions that enhance the participation of civil society in voluntary activities, as well as to increase the visibility of volunteering. ACT Council Decision 2010/37/EC of 27 November 2009 on the European Year of Voluntary Activities Promoting Active Citizenship (2011). SUMMARY This decision designates the year 2011 as the European Year of Voluntary Activities * Promoting Active Citizenship. Volunteering is one of the central elements of active citizenship, and active citizenship strengthens social cohesion and develops democracy. The year 2011 is also the tenth anniversary of the United Nations (UN) International Year of Volunteers (2001). Objectives of the European Year 2011 The general aim of the Year is to improve the visibility of, and the opportunities for civil society to participate in, voluntary activities in the European Union (EU). To this end, the Year provides support to local, regional and national authorities to exchange experiences and good practices. In particular, the Year aims at: creating an environment that encourages volunteering; providing organisers with means to improve the quality of voluntary activities; developing the recognition of voluntary activities; raising awareness of the importance of volunteering. Initiatives of the European Year 2011 In order to achieve its objectives, the Year supports initiatives organised at the EU, national, regional and local levels. These include: exchanges of experience and good practice; commission of studies and research, including dissemination of results; awareness-raising events and conferences; concrete initiatives organised at national level to promote the objectives of the Year; promotional campaigns. EU-wide initiatives are financed either partly or in full from the general budget of the EU. National initiatives are co-financed by the EU, while non-financial support is also available. The budget allocated for the Year amounts to EUR 8 000 000. Cooperation during the European Year 2011 Each EU country designates a national coordinating body to organise its participation in the Year. The national coordinating bodies are responsible for preparing the national programmes and priorities for the Year. To this end, they must consult and cooperate with all relevant stakeholders. In order to fulfil the objectives of the Year, the European Commission may cooperate with any relevant international organisation, such as the UN or the Council of Europe. Coordination of the European Year 2011 The European Commission is responsible for the management of the Year at the EU level. It convenes meetings of stakeholders operating in the field of volunteering to assist it in this work. The Commission also organises meetings with the national coordinating bodies, with a view to coordinating activities at the national level. Background In December 2006, the European Economic and Social Committee adopted an opinion, which called on the European Commission to designate a year of volunteers. In July 2008, the European Parliament adopted a declaration, which called for the year 2011 to be designated as the European Year of Volunteering. Key terms used in the act Voluntary activities: all types of voluntary activity, whether formal, non-formal or informal, that is undertaken of a person’s own free will, choice and motivation, and is without concern for financial gain. References Act Entry into force Deadline for transposition in the Member States Official Journal Decision 2010/37/EC 23.1.2010 - OJ L 17 of 22.1.2010 Last updated: 24.03.2010