# C_2012032EN.01000901.xml

| 4.2.2012 | EN | Official Journal of the European Union | C 32/9 |
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Judgment of the Court (Grand Chamber) of 29 November 2011 (reference for a preliminary ruling from the Gerechtshof te Amsterdam — Netherlands) — National Grid Indus BV v Inspecteur van de Belastingdienst Rijnmond/kantoor Rotterdam

(Case C-371/10)( 1 )

(Transfer of a company’s place of effective management to a Member State other than that in which it is incorporated - Freedom of establishment - Article 49 TFEU - Taxation of unrealised capital gains relating to the assets of a company transferring its place of management between Member States - Determination of the amount of tax at the time of the transfer of the place of management - Immediate recovery of the tax - Proportionality)

2012/C 32/14

Language of the case: Dutch

Referring court

Gerechtshof te Amsterdam

Parties to the main proceedings

Applicant: National Grid Indus BV

Defendant: Inspecteur van de Belastingdienst Rijnmond/kantoor Rotterdam

Re:

Reference for a preliminary ruling — Gerechtshof te Amsterdam — Interpretation of Article 43 EC (now Article 49 TFEU) — National tax legislation providing for immediate taxation on exit for companies transferring their place of management or assets to another Member State

Operative part of the judgment

| 1. | A company incorporated under the law of a Member State which transfers its place of effective management to another Member State, without that transfer affecting its status of a company of the former Member State, may rely on Article 49 TFEU for the purpose of challenging the lawfulness of a tax imposed on it by the former Member State on the occasion of the transfer of the place of effective management. |
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| 2. | Article 49 TFEU must be interpreted as:
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not precluding legislation of a Member State under which the amount of tax on unrealised capital gains relating to a company’s assets is fixed definitively, without taking account of decreases or increases in value which may occur subsequently, at the time when the company, because of the transfer of its place of effective management to another Member State, ceases to obtain profits taxable in the former Member State; it makes no difference that the unrealised capital gains that are taxed relate to exchange rate gains which cannot be reflected in the host Member State under the tax system in force there; —
precluding legislation of a Member State which prescribes the immediate recovery of tax on unrealised capital gains relating to assets of a company transferring its place of effective management to another Member State at the very time of that transfer. | — | not precluding legislation of a Member State under which the amount of tax on unrealised capital gains relating to a company’s assets is fixed definitively, without taking account of decreases or increases in value which may occur subsequently, at the time when the company, because of the transfer of its place of effective management to another Member State, ceases to obtain profits taxable in the former Member State; it makes no difference that the unrealised capital gains that are taxed relate to exchange rate gains which cannot be reflected in the host Member State under the tax system in force there; | — | precluding legislation of a Member State which prescribes the immediate recovery of tax on unrealised capital gains relating to assets of a company transferring its place of effective management to another Member State at the very time of that transfer. |
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| — | not precluding legislation of a Member State under which the amount of tax on unrealised capital gains relating to a company’s assets is fixed definitively, without taking account of decreases or increases in value which may occur subsequently, at the time when the company, because of the transfer of its place of effective management to another Member State, ceases to obtain profits taxable in the former Member State; it makes no difference that the unrealised capital gains that are taxed relate to exchange rate gains which cannot be reflected in the host Member State under the tax system in force there; | | | | |
| — | precluding legislation of a Member State which prescribes the immediate recovery of tax on unrealised capital gains relating to assets of a company transferring its place of effective management to another Member State at the very time of that transfer. | | | | |

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( 1 )  OJ C 328, 4.12.2010.

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