Case C‑385/12

Hervis Sport- és Divatkereskedelmi Kft.

v

Nemzeti Adó- és Vámhivatal Közép-dunántúli Regionális Adó Főigazgatósága

(Request for a preliminary ruling from the Székesfehérvári Törvényszék)

‛Reference for a preliminary ruling — Direct taxation — Freedom of establishment — National tax legislation establishing an exceptional tax on the turnover of store retail trade — Retail store chains — Existence of a discriminatory effect — Indirect discrimination’

Summary — Judgment of the Court (Grand Chamber), 5 February 2014

1. Questions referred for a preliminary ruling — Jurisdiction of the Court — Limits — Identification of the subject-matter of the question

   (Art. 267 TFEU)

2. Freedom of movement for persons — Freedom of establishment — Provisions of the Treaty — Scope — National legislation relating to tax on the turnover of store retail trade which obliges taxable persons belonging to a group of companies to aggregate their turnover for the purpose of the application of a steeply progressive rate, and then to divide the resulting amount of tax among them in proportion to their actual turnover — Included

   (Art. 49 TFEU)

3. Freedom of movement for persons — Freedom of establishment — Tax legislation — Corporation tax — National legislation relating to tax on the turnover of store retail trade which obliges taxable persons belonging to a group of companies to aggregate their turnover for the purpose of the application of a steeply progressive rate, and then to divide the resulting amount of tax among them in proportion to their actual turnover — Indirect discrimination on the basis of the registered office of companies — Unlawful — No justification — Absence

   (Arts 49 TFEU and 54 TFEU)

1.  See the text of the decision.

   (see para. 18)

2.  See the text of the decision.

   (see paras 21, 22, 24-28)

3.  Articles 49 TFEU and 54 TFEU must be interpreted as precluding legislation of a Member State relating to tax on the turnover of store retail trade which obliges taxable legal persons constituting, within a group, ‘linked undertakings’ within the meaning of that legislation, to aggregate their turnover for the purpose of the application of a steeply progressive rate, and then to divide the resulting amount of tax among them in proportion to their actual turnover, if – and it is for the referring court to determine whether this is the case – the taxable persons covered by the highest band of the special tax are linked, in the majority of cases, to companies which have their registered office in another Member State.

   Although that legislation does not make a formal distinction according to the registered office of the companies, it may bring about indirect discrimination on the basis of the registered office of the companies for the purposes of those articles. That legislation imposes a criterion of differentiation between, on the one hand, taxable persons subject to the special tax which are linked to other companies within a group, and, on the other hand, taxable persons which are not part of a group of companies. That criterion has the effect of disadvantaging legal persons which are linked to other companies within a group compared with legal persons which are not part of such a group of companies.

   In that respect, such a restriction is permissible only if it is justified by overriding reasons in the public interest. It is further necessary, in such a case, that it be appropriate for ensuring the attainment of the objective in question and not go beyond what is necessary to attain that objective. However, it is not possible to validly invoke, in support of such a system, either the protection of the economy of the country or the restoration of budgetary balance by increasing fiscal receipts.

   (see paras 31, 33, 41, 42, 44, 45, operative part)

Case C‑385/12

Hervis Sport- és Divatkereskedelmi Kft.

v

Nemzeti Adó- és Vámhivatal Közép-dunántúli Regionális Adó Főigazgatósága

(Request for a preliminary ruling from the Székesfehérvári Törvényszék)

‛Reference for a preliminary ruling — Direct taxation — Freedom of establishment — National tax legislation establishing an exceptional tax on the turnover of store retail trade — Retail store chains — Existence of a discriminatory effect — Indirect discrimination’

Summary — Judgment of the Court (Grand Chamber), 5 February 2014

1. Questions referred for a preliminary ruling — Jurisdiction of the Court — Limits — Identification of the subject-matter of the question

   (Art. 267 TFEU)

2. Freedom of movement for persons — Freedom of establishment — Provisions of the Treaty — Scope — National legislation relating to tax on the turnover of store retail trade which obliges taxable persons belonging to a group of companies to aggregate their turnover for the purpose of the application of a steeply progressive rate, and then to divide the resulting amount of tax among them in proportion to their actual turnover — Included

   (Art. 49 TFEU)

3. Freedom of movement for persons — Freedom of establishment — Tax legislation — Corporation tax — National legislation relating to tax on the turnover of store retail trade which obliges taxable persons belonging to a group of companies to aggregate their turnover for the purpose of the application of a steeply progressive rate, and then to divide the resulting amount of tax among them in proportion to their actual turnover — Indirect discrimination on the basis of the registered office of companies — Unlawful — No justification — Absence

   (Arts 49 TFEU and 54 TFEU)

1.  See the text of the decision.

   (see para. 18)

2.  See the text of the decision.

   (see paras 21, 22, 24-28)

3.  Articles 49 TFEU and 54 TFEU must be interpreted as precluding legislation of a Member State relating to tax on the turnover of store retail trade which obliges taxable legal persons constituting, within a group, ‘linked undertakings’ within the meaning of that legislation, to aggregate their turnover for the purpose of the application of a steeply progressive rate, and then to divide the resulting amount of tax among them in proportion to their actual turnover, if – and it is for the referring court to determine whether this is the case – the taxable persons covered by the highest band of the special tax are linked, in the majority of cases, to companies which have their registered office in another Member State.

   Although that legislation does not make a formal distinction according to the registered office of the companies, it may bring about indirect discrimination on the basis of the registered office of the companies for the purposes of those articles. That legislation imposes a criterion of differentiation between, on the one hand, taxable persons subject to the special tax which are linked to other companies within a group, and, on the other hand, taxable persons which are not part of a group of companies. That criterion has the effect of disadvantaging legal persons which are linked to other companies within a group compared with legal persons which are not part of such a group of companies.

   In that respect, such a restriction is permissible only if it is justified by overriding reasons in the public interest. It is further necessary, in such a case, that it be appropriate for ensuring the attainment of the objective in question and not go beyond what is necessary to attain that objective. However, it is not possible to validly invoke, in support of such a system, either the protection of the economy of the country or the restoration of budgetary balance by increasing fiscal receipts.

   (see paras 31, 33, 41, 42, 44, 45, operative part)