Case C-38/10

European Commission

v

Portuguese Republic

‛Failure of a Member State to fulfil obligations — Article 49 TFEU — Tax legislation — Transfer of residence for tax purposes — Transfer of assets — Immediate exit tax’

Summary — Judgment of the Court (Fourth Chamber), 6 September 2012

1. Actions for failure to fulfil obligations — Subject matter of the dispute — Determined in the course of the pre-litigation procedure — Obligation on the Commission to establish that the complaints in, first, the letter of formal notice and, second, the reasoned opinion and the proceedings are the same — Complaints not the same — Inadmissibility

   (Art. 256 TFEU)

2. Freedom of movement for persons — Freedom of establishment — Provisions of the Treaty — Scope

   (Art. 49 TFEU)

3. Freedom of movement for persons — Freedom of establishment — Restrictions — Tax legislation — Transfer of the seat and of the effective management of a company incorporated under national law, or transfer of the assets of a non-resident company’s permanent establishment situated in the territory of the Member State concerned, to another Member State — National legislation prescribing the immediate taxation of unrealised capital gains relating to the assets transferred — Unlawful

   (Art. 49 TFEU)

1.  See the text of the decision.

   (see paras 15, 16)

2.  See the text of the decision.

   (see paras 24-26)

3.  A Member State fails to fulfil its obligations under Article 49 TFEU if it adopts and maintains in force provisions relating to corporation tax which are applicable in the case of transfer, by a company incorporated under national law, of its registered office and its effective management to another Member State or in the case of transfer, by a company not resident in that first Member State, of some or all of the assets attached to a permanent establishment situated in its territory to another Member State, and which prescribe the immediate taxation of unrealised capital gains relating to the assets concerned but not of unrealised capital gains resulting from purely national operations. Such a company is penalised financially compared with a company which is subject to the law of that Member State and limits similar operations to the territory of the latter, and that difference in treatment cannot be justified by an objective difference of situation.

   (see paras 27-29, 35, operative part)

Case C-38/10

European Commission

v

Portuguese Republic

‛Failure of a Member State to fulfil obligations — Article 49 TFEU — Tax legislation — Transfer of residence for tax purposes — Transfer of assets — Immediate exit tax’

Summary — Judgment of the Court (Fourth Chamber), 6 September 2012

1. Actions for failure to fulfil obligations — Subject matter of the dispute — Determined in the course of the pre-litigation procedure — Obligation on the Commission to establish that the complaints in, first, the letter of formal notice and, second, the reasoned opinion and the proceedings are the same — Complaints not the same — Inadmissibility

   (Art. 256 TFEU)

2. Freedom of movement for persons — Freedom of establishment — Provisions of the Treaty — Scope

   (Art. 49 TFEU)

3. Freedom of movement for persons — Freedom of establishment — Restrictions — Tax legislation — Transfer of the seat and of the effective management of a company incorporated under national law, or transfer of the assets of a non-resident company’s permanent establishment situated in the territory of the Member State concerned, to another Member State — National legislation prescribing the immediate taxation of unrealised capital gains relating to the assets transferred — Unlawful

   (Art. 49 TFEU)

1.  See the text of the decision.

   (see paras 15, 16)

2.  See the text of the decision.

   (see paras 24-26)

3.  A Member State fails to fulfil its obligations under Article 49 TFEU if it adopts and maintains in force provisions relating to corporation tax which are applicable in the case of transfer, by a company incorporated under national law, of its registered office and its effective management to another Member State or in the case of transfer, by a company not resident in that first Member State, of some or all of the assets attached to a permanent establishment situated in its territory to another Member State, and which prescribe the immediate taxation of unrealised capital gains relating to the assets concerned but not of unrealised capital gains resulting from purely national operations. Such a company is penalised financially compared with a company which is subject to the law of that Member State and limits similar operations to the territory of the latter, and that difference in treatment cannot be justified by an objective difference of situation.

   (see paras 27-29, 35, operative part)