# C_2019270EN.01000501.xml

| 12.8.2019 | EN | Official Journal of the European Union | C 270/5 |
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12.8.2019

EN

Official Journal of the European Union

C 270/5

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Judgment of the Court (First Chamber) of 19 June 2019 (request for a preliminary ruling from the Högsta förvaltningsdomstolen — Sweden) — Skatteverket v Memira Holding AB

(Case C-607/17) (1)

(Reference for a preliminary ruling - Corporation tax - Group of companies - Freedom of establishment - Deduction of losses of a non-resident subsidiary - Concept of ‘final losses’ - Merger-absorption of the subsidiary by the parent company - Legislation of the State of establishment of the subsidiary granting the deduction of losses in the context of a merger solely to the entity sustaining those losses)

(2019/C 270/05)

Language of the case: Swedish

Referring court

Högsta förvaltningsdomstolen

Parties to the main proceedings

Applicant: Skatteverket

Defendant: Memira Holding AB

Operative part of the judgment

| 1. | For the purposes of the assessment of the finality of the losses of a non-resident subsidiary, within the meaning of paragraph 55 of the judgment of 13 December 2005, Marks & Spencer (C-446/03, EU:C:2005:763), the fact that the subsidiary’s Member State of establishment does not allow the losses of one company to be transferred, in the event of a merger, to another company liable for corporation tax, whereas such a transfer is provided for by the Member State in which the parent company is established in the event of a merger between resident companies, is not decisive, unless the parent company demonstrates that it is impossible for it to deduct those losses by ensuring, in particular by means of a sale, that they are fiscally taken into account by a third party for future tax periods; |
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1.

For the purposes of the assessment of the finality of the losses of a non-resident subsidiary, within the meaning of paragraph 55 of the judgment of 13 December 2005, Marks & Spencer (C-446/03, EU:C:2005:763), the fact that the subsidiary’s Member State of establishment does not allow the losses of one company to be transferred, in the event of a merger, to another company liable for corporation tax, whereas such a transfer is provided for by the Member State in which the parent company is established in the event of a merger between resident companies, is not decisive, unless the parent company demonstrates that it is impossible for it to deduct those losses by ensuring, in particular by means of a sale, that they are fiscally taken into account by a third party for future tax periods;

| 2. | If the fact referred to in the first question becomes relevant, the fact that there is, in the State of establishment of the subsidiary, no other entity which could have deducted those losses in the event of a merger if such a deduction had been authorised is irrelevant. |
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2.

If the fact referred to in the first question becomes relevant, the fact that there is, in the State of establishment of the subsidiary, no other entity which could have deducted those losses in the event of a merger if such a deduction had been authorised is irrelevant.

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(1)  OJ C 5, 8.1.2018.

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