Marianne Scheunemann v Finanzamt Bremerhaven.
Date: 2012-07-19
20. In order to determine whether national legislation falls within the scope of one or other of the freedoms of movement, it is clear from now well established case-law that the aim of the legislation concerned must be taken into consideration (see, to that effect, Joined Cases C-436/08 and C-437/08 Haribo Lakritzen Hans Riegel and Österreichische Salinen  [2011] ECR I-305, paragraph 33, and Case C-132/10 Halley [2011] ECR I-8353, paragraph 17).
22. It is also clear from the case-law of the Court that the tax treatment of inheritances falls, in principle, under Article 63 TFEU on the free movement of capital. Inheritances consisting in the transfer to one or more persons of assets left by a deceased person, falling under heading XI of Annex I to Directive 88/361, which is entitled ‘Personal capital movements’, are movements of capital for the purposes of Article 63 TFEU (see, inter alia, Case C-11/07 Eckelkamp and Others  [2008] ECR I-6845, paragraph 39; Case C-43/07 Arens-Sikken  [2008] ECR I-6887, paragraph 30; Case C-35/08 Busley and Cibrian Fernandez  [2009] ECR I-9807, paragraph 18; and Case C-25/10 Missionswerk Werner Heukelbach [2011] ECR I-497, paragraph 16).
23. However, it should be noted that, according to settled case-law, national legislation which is intended to apply only to shareholdings enabling the holder to exert a definite influence over a company’s decisions and determine its activities is covered by the Treaty provisions on freedom of establishment. On the other hand, national provisions which apply to shareholdings acquired solely with the intention of making a financial investment, with no intention of influencing the management and control of the undertaking, must be examined exclusively in the light of the free movement of capital ( Haribo Lakritzen Hans Riegel and Österreichische Salinen , paragraph 35 and the case-law cited).
30. It should therefore be held that the legislation at issue in the main proceedings primarily affects freedom of establishment and that, in accordance with the case-law of the Court, it falls solely within the scope of the Treaty provisions concerning that freedom. If it were to be found that such a national measure has restrictive effects on the free movement of capital, those effects would have to be seen as an unavoidable consequence of a restriction on freedom of establishment and would not justify an independent examination of that measure in the light of the Treaty provisions on the free movement of capital (see, to that effect, Case C-464/05 Geurts and Vogten  [2007] ECR I-9325, paragraph 16 and the case-law cited).
33. As regards the Treaty chapter on freedom of establishment, it does not contain any provision which extends the scope of that chapter to cover situations concerning a shareholding in a company which has its registered office in a third country (see, to that effect, Case C-102/05 A and B  [2007] ECR I-3871, paragraph 29, and Case C-157/05 Holböck  [2007] ECR I-4051, paragraph 28) and, as it is, the case before the referring court concerns a shareholding in a capital company which has its registered office in Canada.