DI. VI. Finanziaria di Diego della Valle & C. SapA v Administration des contributions en matière d’impôts.
Date: 2012-09-06
29. In those circumstances, it should be observed that the legislation at issue in the main proceedings is limited to attaching tax consequences, for companies incorporated under national law, to the situation in which those companies find themselves when they cease to be liable to Luxembourg capital tax, in particular following the transfer of their seat to another Member State (see, to that effect, Case C-371/10 National Grid Indus  [2011] ECR I-12273, paragraph 31).
32. Article 49 TFEU requires the abolition of restrictions on the freedom of establishment. Even though, according to their wording, the Treaty provisions on freedom of establishment are aimed at 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 (see National Grid Indus , paragraph 35 and the case-law cited).
33. 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 restrictions on that freedom (see Case C-442/02 CaixaBank France [2004] ECR I-8961, paragraph 11; Case C-298/05 Columbus Container Services [2007] ECR I-10451, paragraph 34; Case C-157/07 Krankenheim Ruhesitz am Wannsee-Seniorenheimstatt [2008] ECR I-8061, paragraph 30 ; and Case C-96/08 CIBA [2010] ECR I-2911, paragraph 19).
36. That difference of treatment with regard to the system of capital tax reduction at issue in the main proceedings, which may have negative repercussions on the assets of companies wishing to transfer their seat outside Luxembourg, is liable to deter companies incorporated under Luxembourg law from transferring their seat to another Member State during the five-year period following the tax year in the course of which the capital tax reduction was granted to them (see, to that effect, Case C-9/02 Lasteyrie du Saillant [2004] ECR I-2409, paragraph 46; Case C-470/04 N [2006] ECR I-7409, paragraph 35; and Case C-38/10 Commission  v Portugal [2012] ECR, paragraph 28).
37. Contrary to what is argued by the Luxembourg Government, that difference of treatment cannot be explained by an objective difference of situation. From the point of view of legislation of a Member State aiming to grant a reduction of the tax on capital generated in its territory, the situation of a company incorporated under the law of that Member State which transfers its seat to another Member State is similar to that of a company, also incorporated under the law of the first Member State, which continues to have its seat in that Member State, as regards the reduction of the tax on capital generated in the first Member State before the transfer of the seat (see, to that effect, National Grid Indus , paragraph 38, and Commission v Portugal , paragraph 29).
41. According to settled case-law, a restriction on the freedom of establishment is permissible only if it is justified by overriding reasons in the public interest. It is further necessary, in such a case, that it should be appropriate to ensuring the attainment of the objective in question and not go beyond what is necessary to attain that objective (see National Grid Indus , paragraph 42 and the case-law cited).
43. In that regard, it must be recalled that preserving the allocation of powers of taxation between the Member States is a legitimate objective recognised by the Court ( National Grid Indus , paragraph 45 and the case-law cited).
46. Moreover, the restriction at issue in the main proceedings cannot be justified by the need to ensure the coherence of the national tax system, which the Court has acknowledged constitutes an overriding reason in the public interest (see, to that effect, Case C-204/90 Bachmann  [1992] ECR I-249, paragraph 28, and Case C-300/90 Commission  v Belgium  [1992] ECR I-305, paragraph 21).
47. For an argument based on such a justification to succeed, 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-347/04 Rewe Zentralfinanz  [2007] ECR I-2647, paragraph 62 and the case-law cited). There is no such direct link when it is a question, in particular, of different taxes or the tax treatment of different taxpayers (see, to that effect, Case C-168/01 Bosal  [2003] ECR I-9409, paragraph 30, and Case C-253/09 Commission  v Hungary  [2011] ECR I-12391, paragraph 77).
49. Therefore, as the Commission emphasises, the remote and uncertain nature of such subsequent taxation cannot justify the restriction on the freedom of establishment resulting from that paragraph of the LIF.
50. With regard to the main objective pursued by the tax system referred to in Paragraph 8a of the LIF, as formulated in the preparatory work prior to its adoption, namely to increase the national tax revenue, it suffices to point out that it is settled case-law that obtaining tax revenue cannot be regarded as an overriding reason in the public interest which may be relied on to justify a measure which, in principle, is contrary to a fundamental freedom (see Case C-264/96 ICI  [1998] ECR I-4695, paragraph 28, and Joined Cases C-397/98 and C-410/98 Metallgesellschaft and Others  [2001] ECR I-1727, paragraph 59).