Case C-380/11

DI. VI. Finanziaria di Diego della Valle & C. SapA

v

Administration des contributions en matière d’impôts

(Reference for a preliminary ruling from the le tribunal administratif (Luxembourg))

‛Freedom of establishment — Article 49 TFEU — Tax legislation — Capital tax — Conditions for granting a reduction in capital tax — Situation where a company is no longer liable to capital tax following transfer of its seat to another Member State — Restriction — Justification — Overriding reasons in the public interest’

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

1. Freedom of movement for persons — Freedom of establishment — Provisions of the Treaty — Scope — Transfer of the seat of a company incorporated under national law to another Member State — National tax legislation applicable upon transfer — Included

   (Arts 49 TFEU and 54 TFEU)

2. Freedom of movement for persons — Freedom of establishment — Restrictions — Tax legislation — Capital tax — National legislation making the capital tax reduction conditional upon maintaining liability to that tax, in the Member State concerned, for five years — Not permissible — Justification by the requirement of the balanced allocation of powers of taxation and the need to to ensure the coherence of the tax system — None

   (Art. 49 TFEU)

3. Freedom of movement for persons — Freedom of establishment — Restrictions — Justification — Overriding reasons in the public interest — Obtaining tax revenue — Not permissible

   (Art. 49 TFEU)

1.  See the text of the decision.

   (see paras 29-31)

2.  Article 49 TFEU must be interpreted, in circumstances such as those at issue in the main proceedings, as precluding national legislation which makes the grant of a reduction in capital tax conditional upon remaining liable to that tax for the next five tax years.

   Such a restriction on the freedom of establishment cannot be justified by the requirement of the balanced allocation of powers of taxation between the Member States. Withdrawing from a company the capital tax reduction which it was receiving and requiring immediate payment when the company transfers its seat to another Member State do not ensure either the powers of taxation of the latter Member State or the balanced allocation of the powers of taxation between the Member States concerned, since the very nature of the mechanism of withdrawing an advantage implies that the Member State had agreed, in advance, to grant that advantage and, consequently, to reduce the capital tax of resident taxpayers if the conditions provided for in the national legislation were satisfied.

   Moreover, that restriction cannot be justified by the need to ensure the coherence of the national tax system, as there is no direct link between, on the one hand, the grant of a reduction in capital tax to a company that complies with the conditions provided for in the national legislation and, on the other, the objectives pursued by that legislation, in particular offsetting that tax advantage with additional revenue from corporate income tax and trade tax on operating profit during five years.

   (see paras 44-46, 48, 52, operative part)

3.  See the text of the decision.

   (see para. 50)

Case C-380/11

DI. VI. Finanziaria di Diego della Valle & C. SapA

v

Administration des contributions en matière d’impôts

(Reference for a preliminary ruling from the le tribunal administratif (Luxembourg))

‛Freedom of establishment — Article 49 TFEU — Tax legislation — Capital tax — Conditions for granting a reduction in capital tax — Situation where a company is no longer liable to capital tax following transfer of its seat to another Member State — Restriction — Justification — Overriding reasons in the public interest’

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

1. Freedom of movement for persons — Freedom of establishment — Provisions of the Treaty — Scope — Transfer of the seat of a company incorporated under national law to another Member State — National tax legislation applicable upon transfer — Included

   (Arts 49 TFEU and 54 TFEU)

2. Freedom of movement for persons — Freedom of establishment — Restrictions — Tax legislation — Capital tax — National legislation making the capital tax reduction conditional upon maintaining liability to that tax, in the Member State concerned, for five years — Not permissible — Justification by the requirement of the balanced allocation of powers of taxation and the need to to ensure the coherence of the tax system — None

   (Art. 49 TFEU)

3. Freedom of movement for persons — Freedom of establishment — Restrictions — Justification — Overriding reasons in the public interest — Obtaining tax revenue — Not permissible

   (Art. 49 TFEU)

1.  See the text of the decision.

   (see paras 29-31)

2.  Article 49 TFEU must be interpreted, in circumstances such as those at issue in the main proceedings, as precluding national legislation which makes the grant of a reduction in capital tax conditional upon remaining liable to that tax for the next five tax years.

   Such a restriction on the freedom of establishment cannot be justified by the requirement of the balanced allocation of powers of taxation between the Member States. Withdrawing from a company the capital tax reduction which it was receiving and requiring immediate payment when the company transfers its seat to another Member State do not ensure either the powers of taxation of the latter Member State or the balanced allocation of the powers of taxation between the Member States concerned, since the very nature of the mechanism of withdrawing an advantage implies that the Member State had agreed, in advance, to grant that advantage and, consequently, to reduce the capital tax of resident taxpayers if the conditions provided for in the national legislation were satisfied.

   Moreover, that restriction cannot be justified by the need to ensure the coherence of the national tax system, as there is no direct link between, on the one hand, the grant of a reduction in capital tax to a company that complies with the conditions provided for in the national legislation and, on the other, the objectives pursued by that legislation, in particular offsetting that tax advantage with additional revenue from corporate income tax and trade tax on operating profit during five years.

   (see paras 44-46, 48, 52, operative part)

3.  See the text of the decision.

   (see para. 50)