Opinion of the Advocate General — ECLI:EU:C:2014:2255
Date: 2014-10-02
Language of the case: Dutch
Subject matter: Free movement of capital
Procedure: Reference for a preliminary ruling
Origin: Netherlands

Summary — Judgment of the Court (Second Chamber), 18 December 2014 Free movement of capital and freedom of payments — Restrictions — Tax legislation — Gift tax — Exemption from gift tax relating to certain properties that are protected on account of their forming part of the national cultural and historical heritage — Exemption limited to properties situated in the national territory — Difference in treatment — Non-comparable situations — No discrimination (Art. 63 TFEU) Article 63 TFEU must be interpreted as not precluding legislation of a Member State under which an exemption from gift tax relating to certain properties that are protected on account of their forming part of the national cultural and historical heritage is limited to those properties situated in the territory of that Member State, provided that that exemption is not excluded in the case of properties that may form part of the cultural and historical heritage of that Member State despite being located in the territory of another State. Admittedly, the greater tax burden on a gift made by a person residing in a Member State when that gift is of a property situated in another Member State constitutes a restriction on the free movement of capital. However, the object of that exemption is to protect the integrity of the estates that are typical of the traditional national landscape against any parcelling out or fundamental changes in the nature of those estates that might result from donors being obliged, in order to pay the tax on the transfer, to break up an estate to dispose of part of it, or to operate it in a way that would adversely affect its particular character. The tax advantage in question thus has the aim of conserving the national natural heritage, which includes the aim of conserving the cultural and historical heritage. Therefore, a taxpayer proposing to make a gift of such a property cannot be regarded as being in a situation that is objectively comparable to that of a taxpayer proposing to make a gift of a property situated in the territory of another Member State, even if that property includes historic buildings listed under the legislation applicable in the latter Member State. The position could be different only if such a taxpayer were to establish that, although a property is situated in the territory of a Member State other than the State of taxation, it nevertheless forms part of the latter State’s cultural and historical heritage, and that that circumstance would render it capable of being protected under the law on nature protection but for the fact that it is situated outside national territory. (see paras 21, 24, 25, 27-29, operative part)