CJEU – Recent Developments in Direct Taxation 2023

1. Introduction

The GE Infrastructure case firstly concerns the CJEU’s jurisdiction to give preliminary rulings pursuant to Art. 267 TFEU. Secondly, it covers the interpretation of the Directive 2009/133/EC (“Tax Merger Directive” or “Directive”), in particular, its provisions on partial divisions. The primary question is whether the CJEU has jurisdiction to interpret a directive under circumstances where the directive does not directly govern the situation at issue. However, when transposing the provisions of that directive into national law, the national legislature has chosen, to treat purely domestic situations the same as situations falling within the scope of that directive. The remaining questions focus on the requirements for the application of the system of fiscal neutrality for partial divisions governed by the Tax Merger Directive in its Art. 8 para. 2.

2. Legal context

From an EU Law perspective, the present case is about the interpretation of certain provisions of the Tax Merger Directive that concern partial divisions. According to recital 2 of the Directive, partial divisions involving companies of different Member States may be necessary to create conditions within the...