Opinion of the Advocate General — ECLI:EU:C:2015:242
Date: 2015-04-16
Language of the case: German
Subject matter: State aids;Competition;Right of establishment
Procedure: Reference for a preliminary ruling;Reference for a preliminary ruling - inadmissible
Origin: Austria

Summary — Judgment of the Court (Fourth Chamber), 6 October 2015 1. Questions referred for a preliminary ruling — Admissibility — Limits — Clearly irrelevant questions and hypothetical questions put in a context not permitting a useful answer — Need to provide the Court with sufficient information on the factual and legislative context (Arts 107 TFEU, 108(3) TFEU and 267 TFEU) 2. State aid — Provisions of the Treaty — Scope — Taxes — Exclusion save for taxes financing an aid — Inability of individuals to invoke the nature of a tax measure as illegal aid to avoid payment of the tax at issue or obtain a refund (Arts 107 TFEU and 108(3) TFEU) 3. Freedom of establishment — Tax legislation — Corporation tax — National legislation allowing a parent company which acquired a holding in an undertaking to depreciate the goodwill of the latter undertaking — Restricted to holdings in resident companies — Not permissible — Lack of justification (Art. 49 TFEU) 1. See the text of the decision. (see paras 19-22) 2. Those liable to pay a tax cannot rely on the argument that a fiscal measure enjoyed by other businesses constitutes State aid in order to avoid payment of that tax. (see para. 21) 3. Article 49 TFEU precludes legislation of a Member State, which, in the context of the taxation of a group of companies, allows a parent company, in the case of the acquisition of a holding in a resident company which becomes a member of such a group, to depreciate the goodwill up to a maximum of 50% of the purchase price of the holding, while such depreciation is prohibited in the case of the acquisition of a holding in a non-resident company. Where national legislation creates a tax advantage for a parent company acquiring a holding in a resident company, the failure to grant, in the same circumstances, that tax advantage to a parent company which acquires a holding in a non-resident company introduces a difference in tax treatment between parent companies to the detriment of those which acquire an holding in a non-resident company. That difference in treatment is such as to hinder the exercise by the parent company which acquires a holding in a non-resident company of its freedom of establishment for the purposes of Article 49 TFEU by deterring it from acquiring or setting up subsidiaries in other Member States. Such a difference in treatment is permissible only if it relates to situations which are not objectively comparable or if it is justified by an overriding reason in the public interest. In that regard, where, by virtue of that national legislation, a group of companies can be composed of both resident and non-resident companies the situation of a parent company wishing to form such a group with a resident subsidiary and the situation of a resident parent company wishing to form a group of companies with a non-resident subsidiary are objectively comparable with regard to the aim of the tax scheme at issue, in so far as each seeks to benefit from the advantages of that scheme. Similarly, as regards the possibility of justifying the difference in treatment resulting from such legislation by the need to ensure the coherence of the tax system, in so far as the national legislation does not, by itself, establish a direct link between, first, the tax advantage consisting of the depreciation of the goodwill and, second, the levy consisting of the taxation in so far as concerns the parent company of the capital gain realised upon the disposal of a holding in its subsidiary, it could not be considered that a difference in treatment is justified by the need to ensure the coherence of the tax system of the Member State concerned. (see paras 27-30, 33, 43, 50, 54, operative part)