Judgment of the Court (Second Chamber) of 18 December 2007 (Reference for a preliminary ruling from the Finanzgericht Hamburg — Germany) — Per Grønfeldt and Tatiana Grønfeldt v Finanzamt Hamburg — Am Tierpark

(Case C-436/06) (1)

(Free movement of capital - Taxation - Income tax - National legislation concerning the taxation of profits made from the sale of shareholdings (shares) in limited companies)

(2008/C 51/36)

Language of the case: German

Referring court

Finanzgericht Hamburg

Parties to the main proceedings

Applicants: Per Grønfeldt and Tatiana Grønfeldt

Defendant: Finanzamt Hamburg — Am Tierpark

Re:

Reference for a preliminary ruling — Finanzgericht Hamburg — Interpretation of Article 56 EC — Tax on the profits made from the sale of shares in limited companies — National legislation making taxation conditional upon a shareholding of at least 10 % if the company concerned is subject to unlimited corporation tax in the Member State, but conditional upon a shareholding of at least 1 % if the company concerned is established in another Member State

Operative part of the judgment

Article 56 EC is to be interpreted as precluding the legislation of a Member State, such as that at issue in the main proceedings, by which the profits from a sale of shares in 2001 in a limited company established in another Member State are immediately taxable where the seller had held, either directly or indirectly, a share of at least 1 % of the company's capital within the previous five years, whereas the profits from the sale of shares in 2001, in the same circumstances, in a limited company established in that first Member State subject to unlimited corporation tax were subject to tax only in the case of a substantial shareholding of at least 10 %.

(1)  OJ C 326, 30.12.2006.