Order — ECLI:EU:C:2004:342
Date: 2004-06-08
Language of the case: Dutch
Court formation: Second Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Right of establishment;Free movement of capital
Concepts: Free movement of capital and freedom of payments;General
Procedure: Reference for a preliminary ruling
Origin: Belgium

Summary of the Order Freedom of movement for persons – Freedom of establishment – Fiscal legislation – Income tax – Gains secured on the assignment for valuable consideration of shares or stock in companies established in the Member State of taxation not chargeable to tax – Not permissible – Restriction on the freedom of movement of capital where the assignee does not obtain sufficient influence in the company (Arts 43 EC, 48 EC and 56 EC) Articles 43 EC and 48 EC preclude national legislation pursuant to which gains secured on the assignment for valuable consideration, otherwise than in the exercise of a business activity, of shares or stock in companies, associations, establishments or bodies, attract a charge to tax where the transfer is made to companies, associations, establishments or bodies established in another Member State, whereas, in the same circumstances, those gains are not chargeable to tax where that transfer is made to companies, associations, establishments or bodies established in the Member State concerned, provided that the shareholding transferred gives its holder definite influence over the company’s decisions and allows him to determine its activities. Article 56 EC precludes such national legislation, where the shareholding transferred is not of that kind. (see para. 28, operative part 1-2)