X AB v Skatteverket.
Date: 2015-06-10
14. In support of its request before the national court, X AB in essence contended that, on account of the Swedish legislation, the investments that it made in Y Ltd were more risky than comparable domestic investments. Its argument is based mainly on the idea that an investment in Swedish Krona made in a Swedish limited company would not be subject to any uncertainty equivalent to the exchange risk to which an investment in another Member State can be subject. The Swedish tax system would, on that account, constitute an impediment to the free movement of capital and to the freedom of establishment, as the Court held in the judgment in Deutsche Shell  (C‑293/06, EU:C:2008:129) the reasoning in which can be applied to the case in the main proceedings.
17. In that regard, it is clear from the Court’s settled case-law that the purpose of the legislation concerned must be taken into consideration (judgments in Test Claimants in the FII Group Litigation , C‑35/11, EU:C:2012:707, paragraph 90 and the case-law cited and Hervis Sport- és Divatkereskedelmi, C‑385/12, EU:C:2014:47, paragraph 21).
18. National legislation intended to apply only to those shareholdings which enable the holder to exert a definite influence on a company’s decisions and to determine its activities falls within the scope of Article 49 TFEU on freedom of establishment (judgments in Test Claimants in the FII Group Litigation , C‑35/11, EU:C:2012:707, paragraph 91 and the case-law cited and Hervis Sport- és Divatkereskedelmi , C‑385/12, EU:C:2014:47, paragraph 22).
19. On the other hand, national provisions which apply to shareholdings acquired solely with the intention of making a financial investment without any intention to influence the management and control of the undertaking must be examined exclusively in light of the free movement of capital (judgment in Test Claimants in the FII Group Litigation , C‑35/11, EU:C:2012:707, paragraph 92 and the case-law cited).
21. Furthermore, it has previously been held that a holding of at least 10% of the shares or voting rights does not necessarily imply that the owner of the holding exerts a definite influence over the decisions of the company in which it is a shareholder (see, to that effect, judgments in Test Claimants in the FII Group Litigation , C‑446/04, EU:C:2006:744, paragraph 58 and Itelcar , C‑282/12, EU:C:2013:629, paragraph 22).
23. Likewise, it is settled case-law that the Court must take account of the facts of the case in point in order to determine whether the situation to which the dispute in the main proceedings relates falls within the scope of one or the other of those provisions (see, to that effect, judgment in Test Claimants in the FII Group Litigation, C‑35/11, EU:C:2012:707, paragraphs 93 and 94 and the case-law cited).
24. In that regard, it is apparent from the documents before the Court that X AB holds 45% of the shares in Y Ltd, in both capital and voting rights. It has already been held that a holding at this level, in principle, confers a ‘definite influence’ over the decisions and activities of the company concerned, within the meaning of the case-law cited at paragraph 18 above (see, by analogy, judgment in SGI , C‑311/08, EU:C:2010:26, paragraph 35).
27. It is to be noted that Article 49 TFEU requires the abolition of restrictions on the freedom of establishment. Therefore, even though, according to their wording, the provisions of TFEU on 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 one of its nationals or of a company incorporated under its legislation (judgments in Marks & Spencer , C‑446/03, EU:C:2005:763, paragraph 31; National Grid Indus , C‑371/10, EU:C:2011:785, paragraph 35; and Bouanich , C‑375/12, EU:C:2014:138, paragraph 57).
28. It is also settled case-law that all measures which prohibit, impede or render less attractive the exercise of the freedom of establishment must be regarded as such restrictions (see judgments in National Grid Indus , C‑371/10, EU:C:2011:785, paragraph 36; DI. VI. Finanziaria di Diego della Valle & C. , C‑380/11, EU:C:2012:552, paragraph 33; and Bouanich , C‑375/12, EU:C:2014:138, paragraph 58).
29. The Court has held that such restrictive effects may arise in particular 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 (judgments in Marks & Spencer , C‑446/03, EU:C:2005:763, paragraphs 32 and 33; Keller Holding , Case C‑471/04, EU:C:2006:143, paragraph 35; and Deutsche Shell , C‑293/06, EU:C:2008:129, paragraph 29).
33. In that regard, it should be added that, even assuming that such non-deductibility might be likely to disadvantage a company having invested in ‘holdings for business purposes’ in a company established in another Member State by the fact of its exposure to currency losses when, as in the case in the main proceedings, that investment is made in shares denominated in a currency other than that of the host Member State, it follows from the Member States’ competence in tax matters that the freedom of companies to choose between different Member States of establishment by no means implies that the latter are required to adapt their own tax systems to the different taxation systems of other Member States so as to ensure that a company that has chosen to establish itself in one Member State is taxed at national level in the same way as a company having chosen to establish itself in another Member State, it being the case that that choice can, in the circumstances, be more or less advantageous or disadvantageous for that company (see, to that effect, judgments in Deutsche Shell, C‑293/06, EU:C:2008:129, paragraph 43, and Krankenheim Ruhesitz am Wannsee-Seniorenheimstatt, C‑157/07, EU:C:2008:588, paragraph 50).
36. That finding cannot be called into question by the statements in the judgment in Deutsche Shell  (C‑293/06, EU:C:2008:129) which X AB relies upon.
38. However, the Court reached that conclusion in a legal context different from that arising from the application of the national law in the main proceedings. As the referring court observed, the national legislation at issue in the case giving rise to the judgment in Deutsche Shell (C‑293/06, EU:C:2008:129) provided that, as a general rule, currency gains were taxed and, at the same time, currency losses were deductible unless a convention to prevent double taxation stipulated otherwise.
40. In those circumstances, it cannot be inferred from the provisions of the FEU Treaty concerning freedom of establishment that that Member State would be required to exercise — asymmetrically, moreover — its taxation powers so as to permit the deduction of losses from operations whose results, if they were positive, would not in any event be taxed.
41. Having regard to the foregoing, the answer to the question referred is that Article 49 TFEU must be interpreted as meaning that it does not preclude the tax legislation of a Member State which, in principle, exempts capital gains on holdings for business purposes from corporation tax and, by the same token, excludes the deduction of capital losses on such holdings, even where those capital losses are due to currency losses.
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