JUDGMENT OF THE COURT

(Grand Chamber)

of 13 December 2005

in Case C-446/03, Reference for a preliminary ruling from the High Court of Justice of England and Wales, Chancery Division Marks & Spencer plc v David Halsey (Her Majesty's Inspector of Taxes) (1)

(Articles 43 EC and 48 EC - Corporation tax - Groups of companies - Tax relief - Profits of parent companies - Deduction of losses incurred by a resident subsidiary - Allowed - Deduction of losses incurred in another Member State by a non-resident subsidiary - Not included)

(2006/C 36/09)

Language of the case: English

In Case C-446/03: reference for a preliminary ruling under Article 234 EC from the High Court of Justice of England and Wales, Chancery Division (United Kingdom), made by decision of 16 July 2003, received at the Court on 22 October 2003, in the proceedings between Marks & Spencer plc and David Halsey (Her Majesty's Inspector of Taxes) — the Court (Grand Chamber), composed of V. Skouris, President of the Chamber, P. Jann, C.W.A. Timmermans and A. Rosas, Presidents of Chambers, C. Gulmann (Rapporteur), A. La Pergola, J. P. Puissochet, R. Schintgen, N. Colneric, J. Klučka, U. Lõhmus, E. Levits and A. Ó Caoimh, Judges; M. Poiares Maduro, Advocate General; K. Sztranc, Administrator, for the Registrar, gave a judgment on 13 December 2005, the operative part of which is as follows:

As Community law now stands, Articles 43 EC and 48 EC do not preclude provisions of a Member State which generally prevent a resident parent company from deducting from its taxable profits losses incurred in another Member State by a subsidiary established in that Member State although they allow it to deduct losses incurred by a resident subsidiary. However, it is contrary to Articles 43 EC and 48 EC to prevent the resident parent company from doing so where the non-resident subsidiary has exhausted the possibilities available in its State of residence of having the losses taken into account for the accounting period concerned by the claim for relief and also for previous accounting periods and where there are no possibilities for those losses to be taken into account in its State of residence for future periods either by the subsidiary itself or by a third party, in particular where the subsidiary has been sold to that third party.

(1)  OJ C 304, 13.12.2003.