Opinion of the Advocate General — ECLI:EU:C:2012:580
Date: 2012-09-19
Language of the case: Dutch
Subject matter: Right of establishment
Procedure: Reference for a preliminary ruling
Origin: Belgium

Summary — Judgment of the Court (First Chamber), 4 July 2013 1. Freedom of movement for persons — Freedom of establishment — Provisions of the Treaty — Scope — Obstacles created by a Member State for its own nationals in the exercise of their right to freedom of establishment — Included (Art. 49 TFEU) 2. Questions referred for a preliminary ruling — Jurisdiction of the Court — Interpretation of national law — Not included (Art. 267 TFEU) 3. Freedom of movement for persons — Freedom of establishment — Tax legislation — Corporation tax — National legislation providing for a deduction for risk capital in respect of the net value of the assets of a permanent establishment — Refusal of that deduction for permanent establishments situated in another Member State the income from which is exempt under a double taxation convention — Not permissible — Justification — None (Art. 49 TFEU) 1. See the text of the decision. (see paras 20, 21) 2. See the text of the decision. (see para. 29) 3. Article 49 TFEU must be interpreted as precluding national legislation under which, for calculation of a deduction granted to a company subject to full tax liability in a Member State, the net value of the assets of a permanent establishment situated in another Member State is not taken into account when the profits of that permanent establishment are not taxable in the first Member State by virtue of a double taxation convention, whereas the assets attributed to a permanent establishment situated in the territory of the first Member State are taken into account for that purpose. That restriction cannot be justified by either the coherence of the tax system of the Member State concerned or the balanced allocation between the Member States of the power to tax. (see paras 49, 58, 59, operative part)