62020CJ0707_SUM
Case C‑707/20
Gallaher Limited
v
The Commissioners for Her Majesty’s Revenue and Customs
(Request for a preliminary ruling_from the Upper Tribunal (Tax and Chancery Chamber))
Judgment of the Court (Third Chamber) of 16 February 2023
(Reference for a preliminary ruling – Direct taxation – Corporate income tax – Articles 49, 63 and 64 TFEU – Freedom of establishment – Free movement of capital – Disposal of assets within a group of companies – Company resident for tax purposes in one Member State having a parent company resident for tax purposes in another Member State and a sister company resident for tax purposes in a third country – Disposal of intellectual property rights of the company resident for tax purposes in a Member State to its sister company resident for tax purposes in a third country – Disposal by the company resident for tax purposes in a Member State of shares in one of its subsidiaries to its parent company resident for tax purposes in another Member State – Consideration equal to the market value of the assets transferred – Exemption from tax or imposition of tax depending on the State in which the beneficiary company has its seat)
Freedom of establishment – Free movement of capital – Provisions of the Treaty – Respective scope – Criteria – Shareholdings which allow a definite influence to be exerted on a company’s decisions and its activities to be determined – Shareholdings acquired solely with the intention of making a financial investment without any intention to influence the management and control of the undertaking – One of the freedoms being entirely secondary in relation to the other and being able to be considered together with it – Examination in relation to only one of those freedoms
(Arts 49 and 63 TFEU)
(see paragraphs 55-58, 61-64, 66, operative part 1)
Free movement of persons – Freedom of establishment – Restrictions – Tax legislation – Corporate income tax – Disposal of assets within a group of companies – Transferring company resident for tax purposes in a Member State disposing of assets to a sister company resident for tax purposes in a third country
(Art. 49 TFEU)
(see paragraph 78, operative part 2)
Free movement of persons – Freedom of establishment – Restrictions – Tax legislation – Corporate income tax – Disposal of assets within a group of companies – Transferring company resident for tax purposes in a Member State disposing of assets to a parent company resident for tax purposes in another Member State – Immediate tax charge
(Art. 49 TFEU)
(see paragraphs 89-94, operative part 3)
See the text of the decision.