Opinion of Advocate General Wathelet in the joined cases Jacob and Lasus.
– Article 8(1) and the second subparagraph of Article 8(2) of Council Directive 90/434/EEC of 23 July 1990 on the common system of taxation applicable to mergers, divisions, transfers of assets and exchanges of shares concerning companies of different Member States do not preclude a mechanism which, in the event of an exchange of securities falling within the scope of that directive, defers taxation of the capital gain established on such an exchange until the subsequent transfer of those securities.
– Article 8(1) and the second subparagraph of Article 8(2) of Directive 90/434 must be interpreted as meaning that the capital gain on an exchange of securities may be taxed, when those securities are subsequently transferred, by the Member State with power to tax that gain at the time of the exchange, even though the subsequent transfer of the securities exchanged might fall within the fiscal competence of another Member State.
– Article 49 TFEU prevents a Member State, in which the taxation of the capital gain on an exchange was deferred in accordance with the second paragraph of Article 8(2) of Directive 90/434 until the subsequent transfer of the securities exchanged, from taxing the gain at the time of that transfer without taking account of the capital losses arising after the exchange if such an advantage would be granted to a resident taxpayer. The fact that the subsequent transfer of the securities exchanged does not fall within the fiscal competence of that Member State does not justify such discriminatory treatment.
– If national law provides a mechanism to defer taxation of a capital gain established on an exchange of securities falling within the scope of Directive 90/434 until the subsequent transfer of those securities, and if it provides for account to be taken of the capital losses arising after the exchange of securities for resident taxpayers, the Member State of origin must, under Article 49 TFEU, grant the same advantage to non-resident taxpayers. That obligation does not require the Member State of origin to forego the taxation of the capital gain on the exchange if the subsequent transfer of the securities exchanged does not fall within its fiscal competence.
– The detailed rules for the possible offset of a capital loss arising on a subsequent transfer of the securities is a matter for the national law of the Member State of origin in compliance with EU law, particularly Article 49 TFEU.
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