# C_2013260EN.01001001.xml

| 7.9.2013 | EN | Official Journal of the European Union | C 260/10 |
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7.9.2013

EN

Official Journal of the European Union

C 260/10

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Judgment of the Court (Fifth Chamber) of 18 July 2013 (request for a preliminary ruling from the Korkein hallinto-oikeus — Finland) — P Oy

(Case C-6/12) (1)

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(State aid - Articles 107 and 108 TFEU - Condition of ‘selectivity’ - Regulation (EC) No 659/1999 - Article 1(b)(i) - Existing aid - National legislation concerning corporate income tax - Deductibility of losses sustained - Non-deductibility in the case of change of ownership - Authorisation of derogations - Degree of latitude of the tax authorities)

2013/C 260/17

Language of the case: Finnish

Referring court

Referring court

Korkein hallinto-oikeus

Parties to the main proceedings

Parties to the main proceedings

Applicant: P Oy

Applicant:

Re:

Re:

Request for a preliminary ruling — Korkein hallinto-oikeus — Interpretation of Article 107(1) TFEU — System of deduction of companies’ losses — Legislation on corporate income tax providing that losses sustained during one tax year may be carried forward and deducted from any profit made in the following tax years — Deduction of losses in the case of a change of ownership during the year in which the losses are sustained or thereafter excluded — Exception to the rule excluding deduction for good reasons to do with the continuation of the activities of the company in question

Operative part

Operative part

| 1. | A tax regime such as that at issue in the main proceedings may satisfy the condition of selectivity as an element of the concept of ‘State aid’ within the meaning of Article 107(1) TFEU if it were to be established that the reference system, namely, the ‘normal’ system, consists in a prohibition of the deduction of losses in the case of a change of ownership for the purposes of the first subparagraph of Paragraph 122 of Law No 1535/1992 of 30 December 1992 on income tax (Tuloverolaki), in relation to which the authorisation procedure provided for in the third subparagraph of Paragraph 122 would constitute an exception. Such a regime may be justified by the nature or general scheme of the system of which it forms part, but justification is not possible if the competent national authorities, so far as concerns authorisation to derogate from the prohibition of the deduction of losses, have discretion that empowers them to base authorisation decisions on criteria unrelated to that tax regime. However, the Court does not have sufficient information before it to rule definitively on those classifications. |
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1.

A tax regime such as that at issue in the main proceedings may satisfy the condition of selectivity as an element of the concept of ‘State aid’ within the meaning of Article 107(1) TFEU if it were to be established that the reference system, namely, the ‘normal’ system, consists in a prohibition of the deduction of losses in the case of a change of ownership for the purposes of the first subparagraph of Paragraph 122 of Law No 1535/1992 of 30 December 1992 on income tax (Tuloverolaki), in relation to which the authorisation procedure provided for in the third subparagraph of Paragraph 122 would constitute an exception. Such a regime may be justified by the nature or general scheme of the system of which it forms part, but justification is not possible if the competent national authorities, so far as concerns authorisation to derogate from the prohibition of the deduction of losses, have discretion that empowers them to base authorisation decisions on criteria unrelated to that tax regime. However, the Court does not have sufficient information before it to rule definitively on those classifications.

| 2. | Article 108(3) TFEU does not preclude a tax regime such as that provided for in the first and third subparagraphs of Paragraph 122 of Law No 1535/1992, if that regime should be classified as ‘State aid’, from continuing to be applied in the Member State which established it because it grants ‘existing’ aid, without prejudice to the competence of the European Commission under Article 108(3) TFEU. |
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2.

Article 108(3) TFEU does not preclude a tax regime such as that provided for in the first and third subparagraphs of Paragraph 122 of Law No 1535/1992, if that regime should be classified as ‘State aid’, from continuing to be applied in the Member State which established it because it grants ‘existing’ aid, without prejudice to the competence of the European Commission under Article 108(3) TFEU.

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(1)  OJ C 58, 25.2.2012.

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