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Q, by A. Bakker and D. Smit, and by M. Hamer, advocaat,

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the Netherlands Government, by B. Koopman, K. Bulterman and J. Langer, acting as Agents,

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the German Government, by T. Henze and K. Petersen, acting as Agents,

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the Spanish Government, by A. Rubio González, acting as Agent,

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the French Government, by D. Colas and J.-S. Pilczer, acting as Agents,

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the Italian Government, by G. Palmieri, acting as Agent, and by P. Gentili, avvocato dello Stato,

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the United Kingdom Government, by S. Brighouse, acting as Agent, and by R. Hill, Barrister,

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the European Commission, by W. Roels and W. Mölls, acting as Agents,

1

This request for a preliminary ruling concerns the interpretation of Article 63 TFEU.

2

The request has been made in proceedings between the Staatssecretaris van Economische Zaken (State Secretary for Economic Affairs) and the Staatssecretaris van Financiën (State Secretary for Finance), and Q concerning the refusal by the Netherlands authorities to recognise a property which the interested party owns in a Member State other than the Kingdom of the Netherlands as being an ‘estate’ (‘landgoed’), thus depriving her of the possibility of an exemption in respect of the gift of the property that she wishes to make.

3

Article 1 of the Law on succession 1956 (Successiewet 1956; ‘the Law on succession’) provides:

‘1.   In accordance with this law, the following taxes shall be levied:

…

2°   gift tax on the value of what is obtained as a gift from someone who at the time of donation resided in the Netherlands;

…’

4

Article 5 of the Law on succession is worded as follows:

‘…

2.   The gift tax is levied on what the donee receives, after the deduction of any charges and liabilities related to the donation, from which either the donor or a third party benefit.’

5

Article 1 of the Law on nature protection 1928 (Natuurschoonwet 1928; ‘the Law on nature protection’) provides:

‘1.   For the purposes of this law:

2.   By or in accordance with a general administrative measure, rules shall be laid down with regard to the conditions which an immovable property must satisfy in order to be regarded as an estate. Those conditions concern:

…’

6

Article 2 of the Law on nature protection provides:

‘1.   An owner wishing to have his immovable property designated as an estate shall apply to our Ministers by means of an application submitted to our Minister.

…

4.   Our Ministers shall decide on the application by means of a joint decision.’

7

Article 7 of the Law on nature protection states:

‘1.   If an immovable property which is deemed to be an estate forms part of an acquisition within the meaning of the [Law on succession] — provided the conditions as set out in the following paragraph are met — no recovery shall take place of the difference between the assessed gift tax or inheritance tax which is payable and the tax which would be payable if the immovable property were to be valued at half the market value which would have to be assigned to it at the time of its acquisition if it were encumbered with the burden of having to be maintained as such for a period of 25 years without the felling of any tall trees except as is necessary or customary according to the rules of normal forest management. By way of derogation therefrom, if the estate is accessible to the public in accordance with rules approved by our Ministers, the value of that estate shall be reduced to nil.

…’

8

Article 1 of the classification decision adopted pursuant to the Law on nature protection provides:

‘1.   For the purposes of this decision:

9

Article 2 of the classification decision made pursuant to the Law on nature protection provides:

‘1.   For the purposes of designation as an estate, an immovable property must satisfy the following conditions:

2.   In so far as the land, buildings or water areas of which the immovable property is composed, or the use made thereof, adversely affect the natural heritage, such land, buildings and water areas shall not be taken into account as immovable property for the purposes of designation as an estate.

…’

10

Q, who is resident in the Netherlands for tax purposes, is the owner of a property situated in the United Kingdom (‘The Bean House’) which she intends to give to her son as a gift.

11

Under Netherlands legislation, such a gift could, in whole or in part, be exempt from tax on the condition, in particular, that ‘The Bean House’ is an estate within the meaning of the Law on nature protection and, therefore, that it is situated in the Netherlands.

12

Q unsuccessfully applied to the Netherlands tax authorities for such recognition to be granted.

13

The court at first instance before which the matter was brought by Q held that the right to an exemption from gift tax cannot be limited to estates situated in the Netherlands. According to that court, the impediment to the free movement of capital resulting from such a limitation is justified neither by that Member State’s interest in the protection of its natural and cultural heritage, nor by the need to guarantee the effectiveness of fiscal supervision.

14

In appeal proceedings brought by the Staatssecretaris van Economische Zaken and the Staatssecretaris van Financiën before the Raad van State (Council of State), which also considers there to be a restriction on the free movement of capital, the Raad van State questions the justification identified by the first-instance court. The Netherlands tax authorities maintained that the impediment was justified on account of the practical difficulties posed by fiscal controls in a Member State other than the Kingdom of the Netherlands, including the need to check whether the owners are complying with their commitment to maintain the estate over a period of 25 years. In that regard, the Raad van State queries the extent to which the authorities of other Member States would be obliged to assist the Netherlands authorities in relation to their controls.

15

In those circumstances the Raad van State decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

16

By its questions, which it is appropriate to consider together, the referring court asks, in essence, whether Article 63 TFEU must be interpreted as precluding legislation of a Member State, such as that at issue in the main proceedings, under which an exemption from gift tax relating to certain protected sites is limited to those sites which are situated in the territory of that Member State.

17

Under Article 63(1) TFEU, all restrictions on the movement of capital between Member States and between Member States and third countries are to be prohibited.

18

The Court has already held that the tax treatment of gifts, whether they are gifts of money, immovable property or movable property, comes under the provisions of the FEU Treaty on the movement of capital, except where their constituent elements are confined within a single Member State (see judgment in Mattner, C‑510/08, EU:C:2010:216, paragraph 20).

19

It follows from this that a situation, such as that at issue in the main proceedings, in which a person residing in a Member State makes a gift of an immovable property situated in another Member State falls within the scope of Article 63(1) TFEU.

20

The Court has already held, in relation to inheritance tax, that the fact that the grant of tax advantages is made subject to the condition that the asset transferred be situated in the national territory constitutes a restriction on the free movement of capital prohibited, in principle, by Article 63(1) TFEU (see judgment in Jäger, C‑256/06, EU:C:2008:20, paragraphs 28 to 35). Similarly, in the case of gifts, measures whose effect is to reduce the value of a gift by a resident of a Member State other than that in which the property concerned is located and which taxes the gift of that property also constitute such a restriction (see judgment in Mattner, EU:C:2010:216, paragraph 26).

21

Consequently, in so far as national provisions such as those at issue in the main proceedings make the application of an exemption from gift tax subject to the condition that the immovable property concerned be situated in the national territory, the greater tax burden on a gift made by a person residing in a Member State when that gift is of a property situated in another Member State constitutes a restriction on the free movement of capital.

22

In order for such a restriction to be deemed to be compatible with the Treaty provisions on the free movement of capital, it is, in particular, necessary that the difference in treatment relate to situations which are not objectively comparable, such comparability being required to be assessed on the basis of the object and content of the national provisions at issue in the main proceedings (see judgment in X Holding, C‑337/08, EU:C:2010:89, paragraphs 20 and 22).

23

The Court considers this to be so in the case at issue in the main proceedings.

24

The object of the exemption from gift tax provided for by the Netherlands rules at issue in the main proceedings is to protect the integrity of the estates that are typical of the traditional Netherlands landscape (‘landgoed’) against any parcelling out or fundamental changes in the nature of those estates that might result from donors being obliged, in order to pay the tax on the transfer, to break up an estate to dispose of part of it, or to operate it in a way that would adversely affect its particular character.

25

The tax advantage associated with the transfer of a ‘landgoed’ thus has the aim, as the referring court itself noted, of conserving the national natural heritage, which includes the aim of conserving the cultural and historical heritage. That aim can, in particular, be inferred from the definition of ‘estate’ in Article 1(1)(a) of the Law on nature protection, according to which areas on which there is a house or other buildings appropriate to the character of the estate may be regarded as an integral part of the estate, as well as from the definition of a ‘country residence’ forming part of a ‘landgoed’ in Article 1 of the classification decision, according to which the complex must be surrounded by a historic garden or park established before 1850 and must include at least one element that is a listed historic building for the purposes of Article 6(1) of the Law on the protection of historic buildings 1988.

26

It is apparent from the file submitted to the Court that the gift at issue in the main proceedings concerns a property situated in the United Kingdom of approximately 18 hectares including historic buildings listed under the relevant legislation in the United Kingdom.

27

However, in the light of the aim pursued by the national legislation at issue, a taxpayer proposing to make a gift of a ‘landgoed’ which includes a ‘country residence’ cannot be regarded as being in a situation that is objectively comparable to that of a taxpayer proposing, as in the main proceedings, to make a gift of a property situated in the territory of another Member State, even if that property includes historic buildings listed under the legislation applicable in the latter Member State. Since the tax advantage at issue in the main proceedings is intended to preserve the integrity of certain properties forming part of the national cultural and historical heritage, the resultant disadvantage for a taxpayer in the second of those two situations is thus inherent in the objective pursued by the Netherlands legislature.

28

As stated in paragraph 33 of the judgment delivered today in X (C‑87/13), the position could be different only if such a taxpayer were to establish that, although a property is situated in the territory of a State other than the Kingdom of the Netherlands, it nevertheless forms part of the Netherlands cultural and historical heritage and that that circumstance would render it capable of being protected under the Law on nature protection but for the fact that it is situated outside national territory.

29

Having regard to the foregoing considerations, the answer to the questions referred is that Article 63 TFEU must be interpreted as not precluding legislation of a Member State, such as that at issue in the main proceedings, under which an exemption from gift tax relating to certain properties that are protected on account of their forming part of the national cultural and historical heritage is limited to those properties situated in the territory of that Member State, provided that that exemption is not excluded in the case of properties that may form part of the cultural and historical heritage of that Member State despite being located in the territory of another State.

30

Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Second Chamber) hereby rules:

Article 63 TFEU must be interpreted as not precluding legislation of a Member State, such as that at issue in the main proceedings, under which an exemption from gift tax relating to certain properties that are protected on account of their forming part of the national cultural and historical heritage is limited to those properties situated in the territory of that Member State, provided that that exemption is not excluded in the case of properties that may form part of the cultural and historical heritage of that Member State despite being located in the territory of another State.