Deutsche Shell GmbH v Finanzamt für Großunternehmen in Hamburg.
Date: 2008-02-28
25. On that point, it must be observed that it is for the national court to determine whether the currency fluctuations alleged in the main proceedings led to a currency loss constituting a real economic loss affecting Deutsche Shell’s results for the financial year concerned.
26. It is, however, for the Court to answer the request for a preliminary ruling on the basis of the assessments made by the national court and to give it all the information necessary for it to resolve the dispute.
28. According to settled case-law, all measures which prohibit, impede or render less attractive the exercise of that freedom must be regarded as obstacles (see Case C‑55/94 Gebhard [1995] ECR I‑4165, paragraph 37, and Case C‑442/02 CaixaBank France  [2004] ECR I‑8961, paragraph 11).
29. The Court has held in particular that such restrictive effects may arise specifically where, on account of a tax law, a company may be deterred from setting up subsidiary bodies such as permanent establishments in other Member States and from carrying on its activities through such bodies (see Case C‑446/03 Marks & Spencer  [2005] ECR I‑10837, paragraphs 32 and 33, and Case C‑471/04 Keller Holding  [2006] ECR I‑2107, paragraph 35).
37. First, as far as concerns the argument based on the coherence of the tax system, it must be recalled that the Court has acknowledged that the need to preserve such coherence may justify a restriction on the exercise of the fundamental freedoms guaranteed by the Treaty (see Case C‑204/90 Bachmann [1992] ECR I‑249, paragraph 28; Case C-300/90 Commission  v Belgium  [1992] ECR I‑305, paragraph 21; Keller Holding , paragraph 40; and Case C‑379/05 Amurta  [2007] ECR I‑0000, paragraph 46).
38. However, for such an argument to succeed, the Court has held that a direct link must be established between the tax advantage concerned and the offsetting of that advantage by a particular tax levy (see, Case C‑484/93 Svensson and Gustavsson  [1995] ECR I‑955, paragraph 18; Case C‑436/00 X and Y  [2002] ECR I‑10829, paragraph 52; Keller Holding , paragraph 40, and Case C‑386/04 Centro di Musicologia Walter Stauffer  [2006] ECR I‑8203, paragraphs 54 to 56).
39. Furthermore, the direct nature of the link must be established, in light of the objective pursued by the tax rules concerned, in relation to the relevant tax payers by a strict correlation between the deductible element and the taxable element (see, to that effect, Case C‑80/94 Wielockx  [1995] ECR I‑2493, paragraph 24).
41. Second, as regards the argument based on the existence of the Convention, which has allocated the tax powers between the two Member States concerned, it is settled case-law that, in the absence of unifying or harmonising measures adopted by the Community, the Member States remain competent to determine the criteria for taxation of income and wealth with a view to eliminating double taxation by means, inter alia, of international agreements (see, Case C‑290/04 FKP Scorpio Konzertproduktionen [2006] ECR I‑9461, paragraph 54; Case C‑374/04 Test Claimants in Class IV of the ACT Group Litigation  [2006] ECR I‑11673, paragraph 52; and Case C‑231/05 Oy AA  [2007] ECR I‑0000, paragraph 52).
42. That competence also implies that a Member State cannot be required to take account, for the purposes of applying its tax law, of the negative results of a permanent establishment situated in another Member State which belongs to a company with a registered office in the first State solely because those negative results are not capable of being taken into account for tax purposes in the Member State where the permanent establishment is situated.
43. Freedom of establishment cannot be understood as meaning that a Member State is required to draw up its tax rules on the basis of those in another Member State in order to ensure, in all circumstances, taxation which removes any disparities arising from national tax rules, given that the decisions made by a company as to the establishment of commercial structures abroad may be to the company’s advantage or not, according to circumstances (see, by analogy, Case C‑403/03 Schempp  [2005] ECR I‑6421, paragraph 45).