Case C‑382/16

Hornbach-Baumarkt-AG

v

Finanzamt Landau

(Request for a preliminary ruling from the Finanzgericht Rheinland-Pfalz)

(Reference for a preliminary ruling — Freedom of establishment — Corporation tax — Legislation of a Member State — Calculation of the taxable revenue of companies — Advantage granted gratuitously by a resident company to a non-resident company to which is it linked by a relationship of interdependence — Correction of the taxable income of the resident company — No correction of taxable income in the event of an identical advantage granted by a resident company to another resident company to which it is linked by such a relationship — Restriction on the freedom of establishment — Justification)

Summary — Judgment of the Court (Second Chamber), 31 May 2018

Freedom of movement for persons — Freedom of establishment — Restrictions — Tax legislation — Corporation tax — Calculation of taxable revenue — Unusual or gratuitous advantages granted between companies having relationships of interdependence — National legislation providing that the resident company is to be taxed only in respect of advantages granted by that company to a non-resident company — Lawfulness — Condition — National legislation allowing the presentation of evidence of the commercial justification underlying those advantages — Verification a matter for the national court

(Arts 43 EC and 48 EC (now Arts 49 TFEU and 54 TFEU))

Article 43 EC (now Article 49 TFEU), in conjunction with Article 48 EC (now Article 54 TFEU), must be interpreted as, in principle, not precluding national legislation, such as that at issue in the main proceedings, pursuant to which the income of a company resident in a Member State which granted to a company established in another Member State with which it has a relationship of interdependence advantages under terms that depart from those that would have been agreed on by unrelated third parties under the same or similar circumstances, must be calculated as it would have been if the terms which would have been agreed with unrelated third parties had been applicable, and be corrected, despite the fact that such a correction is not made in respect of taxable income when the same advantages are granted by a resident company to another resident company with which it has a relationship of interdependence. However, it is for the national court to determine whether the legislation at issue in the main proceedings affords the resident taxpayer the opportunity to prove that the terms were agreed on for commercial reasons resulting from its status as a shareholder of the non-resident company.

(see para. 59, operative part)