# C_2013123EN.01000801.xml

| 27.4.2013 | EN | Official Journal of the European Union | C 123/8 |
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27.4.2013

EN

Official Journal of the European Union

C 123/8

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Request for a preliminary ruling from the Gerechtshof Amsterdam (Netherlands) lodged on 25 January 2013 — Inspecteur van de Belastingdienst Noord/kantoor Groningen v SCA Group Holding BV

(Case C-39/13)

2013/C 123/11

Language of the case: Dutch

Referring court

Referring court

Gerechtshof Amsterdam

Parties to the main proceedings

Parties to the main proceedings

Appellant: Inspecteur van de Belastingdienst Noord/kantoor Groningen

Appellant:

Respondent: SCA Group Holding BV

Respondent:

Questions referred

Questions referred

| 1. | Does denying the respondent the opportunity of having the Netherlands fiscal unity regime applied to the activities and the assets of the (sub-)sub-subsidiaries established in the Netherlands — that is to say, Alphabet Holding, HP Holding and Alpha Holding — constitute a restriction of the freedom of establishment within the meaning of Article 43 EC in conjunction with Article 48 EC?
  In that context, in the light of the objectives pursued by the Netherlands fiscal unity regime ..., is the situation of the (sub-)sub-subsidiaries Alphabet Holding, HP Holding and Alpha Holding objectively comparable ... to (i) the situation of companies established in the Netherlands which are (sub-)subsidiaries of an intermediate holding company established in the Netherlands which has not elected to be integrated in a fiscal unity with its parent company established in the Netherlands, and which therefore, as sub-subsidiaries, similarly to Alphabet Holding, HP Holding and Alpha Holding, have no access to the fiscal unity regime with — exclusively — its grandparent company, or to (ii) the situation of sub-subsidiaries established in the Netherlands which, together with their parent company/intermediate holding company established in the Netherlands, have elected to form a fiscal unity with their (grand-)parent company established in the Netherlands and whose activities and assets therefore, unlike those of Alphabet Holding, HP Holding and Alpha Holding, are consolidated for tax purposes? |
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1.

Does denying the respondent the opportunity of having the Netherlands fiscal unity regime applied to the activities and the assets of the (sub-)sub-subsidiaries established in the Netherlands — that is to say, Alphabet Holding, HP Holding and Alpha Holding — constitute a restriction of the freedom of establishment within the meaning of Article 43 EC in conjunction with Article 48 EC?

In that context, in the light of the objectives pursued by the Netherlands fiscal unity regime ..., is the situation of the (sub-)sub-subsidiaries Alphabet Holding, HP Holding and Alpha Holding objectively comparable ... to (i) the situation of companies established in the Netherlands which are (sub-)subsidiaries of an intermediate holding company established in the Netherlands which has not elected to be integrated in a fiscal unity with its parent company established in the Netherlands, and which therefore, as sub-subsidiaries, similarly to Alphabet Holding, HP Holding and Alpha Holding, have no access to the fiscal unity regime with — exclusively — its grandparent company, or to (ii) the situation of sub-subsidiaries established in the Netherlands which, together with their parent company/intermediate holding company established in the Netherlands, have elected to form a fiscal unity with their (grand-)parent company established in the Netherlands and whose activities and assets therefore, unlike those of Alphabet Holding, HP Holding and Alpha Holding, are consolidated for tax purposes?

| 2. | In answering the first sentence of Question 1, does it still make a difference ... whether the domestic companies concerned are held by one single intermediate holding company (at a higher level of the group structure) in the other Member State or whether, as in the case of Alphabet Holding, HP Holding and Alpha Holding, they are held by two (or more) intermediate holding companies — albeit situated in that other Member State — (at two or more higher levels of the group structure)? |
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2.

In answering the first sentence of Question 1, does it still make a difference ... whether the domestic companies concerned are held by one single intermediate holding company (at a higher level of the group structure) in the other Member State or whether, as in the case of Alphabet Holding, HP Holding and Alpha Holding, they are held by two (or more) intermediate holding companies — albeit situated in that other Member State — (at two or more higher levels of the group structure)?

| 3. | If and to the extent that the first sentence of Question 1 must be answered in the affirmative, can such a restriction then be justified by overriding reasons in the general interest, more particularly by the need to maintain tax consistency, including the prevention of unilateral and bilateral double use of losses ...?
  Does it still make a difference in that context that it has been established in the specific case that there is no double use of losses ...? |
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3.

If and to the extent that the first sentence of Question 1 must be answered in the affirmative, can such a restriction then be justified by overriding reasons in the general interest, more particularly by the need to maintain tax consistency, including the prevention of unilateral and bilateral double use of losses ...?

Does it still make a difference in that context that it has been established in the specific case that there is no double use of losses ...?

| 4. | If and to the extent that Question 3 must be answered in the affirmative, should the restriction be considered to be proportionate ...? |
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4.

If and to the extent that Question 3 must be answered in the affirmative, should the restriction be considered to be proportionate ...?

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