Chapter 4: Alternative Routes Towards the Level Playing Field for Companies in the European Community: Suggestions
After evidencing that the tax Directives and the company law Directives have to a considerable extent followed a ‘variable geometry’ towards each others, and that the same requirements for compatibility with EC law apply to the legal competition among the Member States in both fields, this chapter will ultimately argue that, under certain conditions, supranational instruments may become effective routes, in contrast to the harmonization pursued up to the current time, towards a level playing field while ensuring a legal competition compatible with EC law. 4.1 EC CORPORATE TAX DIRECTIVES AND COMPANY LAW HARMONIZATION PROGRAMME: COHERENCE OR ‘VARIABLE GEOMETRY’? Need for Coherence between the Two Groups of EC Directives 4.1.1 The overviews of the implementation of the first two Tax Directives have indicated (in particular, as regards the Merger Directive) that some Member States have been delaying implementing its provisions granting tax relief for intra-EC mergers and divisions on the ground that no EC company law Directive dealing with such operations had been introduced: together with the regulation of intra-EC mergers under the ECS, the company law Directive 2005/56/EC on cross-border mergers of limited liability companies solves the problem with regard to mergers, but not with regard to divisions.1 The granting of tax relief for a certain type of operation would be of little significance for the potentially interested companies if the operation in question were not allowed from the company law viewpoint: therefore, it becomes important to establish whether the tax Directives and the company law harmonization programme have...
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