13.

The Gerechtshof te Amsterdam, which is hearing the main proceedings, has made three requests for a preliminary ruling to the Court pursuant to Article 267 TFEU. The questions referred are largely similar and can be summarised as follows: ‘(1) Does denying the persons concerned the opportunity of having the Netherlands tax entity regime applied to the activities and the assets of the (sub-)sub-subsidiaries (Cases C‑39/13 and C‑41/13)/sister companies (Case C‑40/13) established in the Netherlands constitute a restriction of the freedom of establishment within the meaning of Article 43 EC in conjunction with Article 48 EC? In that context, in the light of the objectives pursued by the Netherlands tax entity regime, is the situation of the (sub-)sub-subsidiaries or the sister companies in the main proceedings objectively comparable to (Cases C‑39/13 and C‑41/13) (i) the situation of companies established in the Netherlands which are (sub-)subsidiaries of an intermediate holding company established in the Netherlands that has not elected to be integrated in a tax entity with its parent company established in the Netherlands, and which therefore, as sub-subsidiaries, similarly to the (sub-)sub-subsidiaries in the main proceedings, have no access to the tax entity regime with — exclusively — their grandparent company, or to (ii) the situation of sub-subsidiaries established in the Netherlands which, together with their intermediate holding company established in the Netherlands, have elected to form a tax entity with their grandparent company established in the Netherlands and whose activities and assets therefore, unlike those of the (sub-)sub-subsidiaries in the main proceedings, are consolidated for tax purposes? (Case C‑40/13) (i) the situation of sister companies, established in the Netherlands, which have not elected to be integrated in a tax entity with their common parent company, established in the Netherlands, and which therefore, jointly as sister companies, similarly to the sister companies in the main proceedings, have no access to the tax entity regime, or to (ii) the situation of sister companies, established in the Netherlands, which, together with their parent company, established in the Netherlands, have elected to form a tax entity with their parent company and whose activities and assets therefore, in contrast to those of the sister companies in the main proceedings, are consolidated for tax purposes? (2) In answering the first sentence of Question 1, does it still make a difference whether (Case C‑39/13) the (sub-)sub-subsidiaries are held by one single intermediate holding company (at a higher level of the group structure) in the other Member State or whether, as in the case of the (sub-)sub-subsidiaries in the main proceedings, they are held by two (or more) intermediate holding companies, albeit situated in that other Member State (at two or more higher levels of the group structure)? (Case C‑41/13) the foreign intermediate holding company concerned, if it did not operate in the Netherlands through a subsidiary but through a permanent establishment, had been able to elect — as regards the assets and the activities of that Netherlands permanent establishment — to form a tax entity with its parent company established in the Netherlands? (Case C‑40/13) the sister companies have a common (direct) parent company in the other Member State or various (direct) parent companies in the other Member State, with the result that it is only at a higher level — albeit situated in that other Member State — of the group structure that there is a common (indirect) parent company of those various companies? (3) If and to the extent that the first sentence of Question 1 must be answered in the affirmative, can such a restriction then be justified by overriding reasons in the public interest, more particularly by the need to maintain fiscal coherence, including the prevention of unilateral and bilateral double use of losses? (4) If and to the extent that Question 3 must be answered in the affirmative, should such a restriction be considered to be proportionate?’