Finanzamt Linz v Bundesfinanzgericht, Außenstelle Linz.
Date: 2015-10-06
17. Referring to the judgment in P  (C‑6/12, EU:C:2013:525, paragraph 39), IFN-Holding claims, in particular, that, in State aid cases, the sole task of the national courts is to safeguard the rights of individuals until the final decision is taken by the Commission, pursuant to Article 108(3) TFEU. That is not the situation in the present case, since none of the parties to the dispute in the main proceedings had introduced a claim on the basis of Article 107 TFEU et seq.
19. It must be borne in mind that a request for a preliminary ruling made by a national court may be declared inadmissible only where it is quite obvious that the interpretation of EU law that is sought is unrelated to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, inter alia, judgment in Belvedere Costruzioni , C‑500/10, EU:C:2012:186, paragraph 16 and the case-law cited).
21. It must, however, be pointed out, that those liable to pay a tax cannot rely on the argument that a fiscal measure enjoyed by other businesses constitutes State aid in order to avoid payment of that tax (see, to that effect, judgment in Air Liquide Industries Belgium , C‑393/04 and C‑41/05, EU:C:2006:403, paragraph 43).
26. Whilst the provisions of the FEU Treaty concerning freedom of establishment are directed to ensuring that foreign nationals and companies are treated in the host Member State in the same way as nationals of that State, they also prohibit the Member State of origin from hindering the establishment in another Member State of a company incorporated under its legislation, in particular through a subsidiary. In particular, freedom of establishment is hindered if, under a Member State’s legislation, a resident company having a subsidiary in another Member State or in another State that is party to the Agreement on the European Economic Area of 2 May 1992 (OJ 1994 L 1, p. 3), suffers a disadvantageous difference in treatment for tax purposes compared with a resident company having a subsidiary in the first Member State (see, to that effect, judgment in Nordea Bank , C‑48/13, EU:C:2014:2087, paragraphs 18 and 19).
29. That difference in treatment is such as to hinder the exercise by the parent company which acquires a holding in a non-resident company of its freedom of establishment for the purposes of Article 49 TFEU by deterring it from acquiring or setting up subsidiaries in other Member States (see, to that effect, judgment in Commission v United Kingdom , C‑172/13, EU:C:2015:50, paragraph 23 and the case-law cited).
30. Such a difference in treatment is permissible only if it relates to situations which are not objectively comparable or if it is justified by an overriding reason in the public interest (see, inter alia, judgment in Nordea Bank , C‑48/13, EU:C:2014:2087, paragraph 23).
31. As regards the question whether the situations at issue are objectively comparable, it must be recalled that the comparability of a cross-border situation with an internal situation must be examined having regard to the aim pursued by the national provisions at issue (judgment in Commission v Finland , C‑342/10, EU:C:2012:688, paragraph 36 and the case-law cited).
33. However, where, by virtue of legislation such as that at issue in the main proceedings, a group of companies can be composed of both resident and non-resident companies the situation of a parent company wishing to form such a group with a resident subsidiary and the situation of a resident parent company wishing to form a group of companies with a non-resident subsidiary are objectively comparable with regard to the aim of a tax scheme such as that at issue in the main proceedings, in so far as each seeks to benefit from the advantages of that scheme (see, to that effect, judgment in X Holding , C‑337/08, EU:C:2010:89, paragraph 24).
39. The difference in treatment, such as that at issue in the main proceedings, can therefore be justified only by overriding reasons in the public interest. It is further necessary, in such a case, that that difference in treatment be appropriate for ensuring the attainment of the objective that it pursues and not go beyond what is necessary to attain it (see judgment in Nordea Bank Danmark , C‑48/13, EU:C:2014:2087, paragraph 25 and the case-law cited).
41. In that regard, it should be recalled that, in the absence of any unifying or harmonising measures of the European Union, the Member States retain the power to define, by treaty or unilaterally, the criteria for allocating their powers of taxation, particularly with a view to eliminating double taxation, and that preservation of that allocation is a legitimate objective recognised by the Court (see judgment in Nordea Bank Danmark , C‑48/13, EU:C:2014:2087, paragraph 27 and the case-law cited).
44. Admittedly, the Court has already recognised that the need to maintain the cohesion of a tax system can justify a restriction on the exercise of the freedoms of movement guaranteed by the Treaty. For an argument based on such a justification to succeed, the Court requires, however, that a direct link be established between the tax advantage concerned and the offsetting of that advantage by a particular tax levy, with the direct nature of that link falling to be examined in the light of the objective pursued by the rules in question (judgment in Grünewald , C‑559/13, EU:C:2015:109, paragraph 48 and the case-law cited).
48. However, it should be noted, first, that the tax advantage consisting of the depreciation of the goodwill produces immediate effects for the parent company, while the taxation of the capital gains realised upon the disposal of the investment in the resident company is remote and uncertain. The referring court notes, moreover, in that regard that strategic holdings are generally held for the long term. In those conditions, the fact that it is possible to tax capital gains realised upon a disposal of the holding is not such as to constitute a consideration based on fiscal cohesion justifying a refusal to grant that tax advantage where a parent company acquires a holding in a non-resident company which becomes a member of a group of companies (see, to that effect, judgments in Rewe Zentralfinanz , C‑347/04, EU:C:2007:194, paragraph 67, and DI. VI. Finanziaria di Diego della Valle & C. , C‑380/11, EU:C:2012:552, paragraph 49).
50. It follows that legislation such as that at issue in the main proceedings does not, by itself, establish a direct link between, first, the tax advantage consisting of the depreciation of the goodwill and, second, the levy consisting of the taxation in so far as concerns the parent company of the capital gain realised upon the disposal of a holding in its subsidiary, such that it could not be considered that difference in treatment, such as that at issue in the main proceedings, is justified by the need to ensure the coherence of the tax system of the Member State concerned (see, to that effect, judgment in Commission v Spain , C‑269/09, EU:C:2012:439, paragraph 87).