Opinion of the Advocate General — ECLI:EU:C:1999:280
Date: 1999-06-03
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Right of establishment;Free movement of capital
Procedure: Reference for a preliminary ruling
Origin: Sweden

Summary of the Judgment 
1. Preliminary rulings — Reference to the Court — Court or tribunal of a Member State 
within the meaning of Article 177 of the EC Treaty (now Article 234 EC) — 
Meaning — 'Regeringsrätten' (Swedish Supreme Administrative Court) — Covered 
(EC Treaty, Art. 177 (now Art. 234 EC)) 
2. Preliminary rulings —Jurisdiction of the Court — Limits — Request for interpretation 
involving a problem which is not of a hypothetical nature — Court obliged to give a 
ruling 
(EC Treaty, Art. 177 (now Art. 234 EC)) 
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SUMMARY — CASE C-200/98 
3. Freedom of movement for persons — Freedom of establishment — Tax legislation — 
Corporation tax — Where a Member State refuses tax relief on intra-group transfers 
involving subsidiaries whose respective seats are in various other Member States — Not 
permissible 
(EC Treaty, Arts 52, 54, 56 and 57 (now, after amendment, Arts 43 EC, 44 EC, 46 EC 
and 47 EC), Art. 53 (repealed by the Treaty of Amsterdam) and Arts 55 and 58 (now 
Arts 45 EC and 48 EC)) 
1. A national court may refer a question 
to the Court only if there is a case 
pending before it and if it is called upon 
to give judgment in proceedings inten­
ded to lead to a decision of a judicial 
nature. Accordingly, when seised of an 
appeal against a ruling of the Skatter­
ättsnämnden (Revenue Law Commis­
sion), the Regeringsrätten (Supreme 
Administrative Court) may seek a pre­
liminary ruling from the Court. In 
appeals, the purpose of the procedure 
before the Regeringsrätten is to review 
the legality of a preliminary decision 
which, once it becomes definitive, 
binds the tax authorities and serves as 
the basis for assessment if and to the 
extent to which the person who applied 
for the preliminary decision continues 
with the action envisaged in his appli­
cation. 
2. By virtue of the cooperation between 
the Court of Justice and the national 
courts provided for by Article 177 of 
the Treaty (now Article 234 EC), it is 
solely for the national court before 
which a dispute has been brought, and 
which must assume responsibility for 
the subsequent judicial decision, to 
determine in the light of the particular 
circumstances of each case both the 
need for a preliminary ruling in order 
to enable it to deliver judgment and the 
relevance of the questions which it 
submits to the Court. Consequently, 
where the questions submitted by the 
national court relate to the interpreta­
tion of a provision of Community law, 
the Court is in principle bound to give 
a ruling. 
The position would be different only if 
the Court were called on to give a 
ruling on a problem of a hypothetical 
nature. That is not the position, how­
ever, in a case where — although the 
national court making the reference is 
called on to give a ruling in proceedings 
concerning the possibility for a com­
pany to carry out in the future an intra-
group transfer for the benefit of 
another company in certain condi­
tions — the Court has sufficient infor­
mation at its disposal regarding the 
circumstances with which the main 
proceedings are concerned to enable it 
to interpret the rules of Community 
law and to give a helpful answer to the 
question submitted to it. 
3. Where a Member State grants certain 
tax relief in respect of intra-group 
transfers made between two public 
limited companies established in that 
Member State and the second of those 
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X AND Y V RIKSSKATTEVERKET 
companies is wholly owned by the first, 
either directly or together with 
— one or more subsidiaries which are 
themselves established in that 
Member State and which it owns 
entirely, or 
— one or more subsidiaries which it 
owns entirely and which have their 
seats in another Member State with 
which the first Member State has 
concluded an agreement for the 
prevention of double taxation 
which contains a non-discrimina­
tion clause, 
Article 52 of the Treaty (now, after 
amendment, Article 43 EC), Article 53 
of the Treaty (repealed by the Treaty of 
Amsterdam), Article 54 of the Treaty 
(now, after amendment, Article 44 
EC), Article 55 of the Treaty (now 
Article 45 EC), Articles 56 and 57 of 
the Treaty (now, after amendment, 
Articles 46 EC and 47 EC) and Arti­
cle 58 of the Treaty (now Article 48 
EC) preclude that tax relief from being 
refused in respect of transfers made 
between two public limited companies 
established in that Member State, 
where the second of those companies 
is wholly owned by the first together 
with several subsidiaries which it owns 
entirely and which have their seat in 
various other Member States with 
which the first Member State has 
concluded agreements for the preven­
tion of double taxation which contain a 
non-discrimination clause. 
Such legislation entails a difference of 
treatment between various types of 
intra-group transfers on the basis of 
the criterion of the subsidiaries' seat. 
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