Opinion of the Advocate General — ECLI:EU:C:2012:150
Date: 2012-03-20
Language of the case: German
Subject matter: Taxation;Free movement of capital
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the Judgment Freedom of establishment — Provisions of the Treaty — Scope — National legislation which, for the purposes of the calculation of inheritance tax, excludes the application of certain tax advantages to an estate in the form of a shareholding in a capital company established in a third country — Possibility of relying on Article 49 TFEU et seq. — None — Inapplicability of the provisions on the free movement of capital (Art. 49 TFEU) Legislation of a Member State which, for the purposes of the calculation of inheritance tax, excludes the application of certain tax advantages to an estate in the form of a shareholding in a capital company established in a third country, while conferring those advantages in the event of the inheritance of such a shareholding when the registered office of the company is in a Member State, primarily affects the exercise of the freedom of establishment for the purposes of Article 49 TFEU et seq., since that holding enables the shareholder to exert a definite influence over the decisions of that company and to determine its activities. If it were to be found that such a national measure has restrictive effects on the free movement of capital, those effects would have to be seen as an unavoidable consequence of a restriction on freedom of establishment and would not justify an independent examination of that measure in the light of the Treaty provisions on the free movement of capital. However, Article 49 TFEU et seq. does not apply in a situation concerning a shareholding in a company which has its registered office in a third country. The Treaty chapter on freedom of establishment does not contain any provision which extends the scope of that chapter to cover such a situation. (see paras 30, 33-35, operative part)