AURES Holdings a.s. v Odvolací finanční ředitelství.
Date: 2020-02-27
25


In particular, the Court has previously held that a company incorporated under the law of a Member State which transfers its place of effective management to another Member State, without that transfer affecting its status as a company of the former Member State, may rely on Article 49 TFEU for the purpose, inter alia, of challenging the tax consequences resulting from that transfer in the Member State of origin (see, to that effect, judgment of 29 November 2011, National Grid Indus, C‑371/10, EU:C:2011:785, paragraph 33).
27


Any other interpretation would fall foul of the very wording of the provisions of EU law on freedom of establishment, which are, inter alia, aimed at ensuring that foreign nationals are treated in the host Member State in the same way as nationals of that State (see, to that effect, judgments of 11 March 2004, de Lasteyrie du Saillant, C‑9/02, EU:C:2004:138, paragraph 42, and of 12 June 2018, Bevola and Jens W. Trock, C‑650/16, EU:C:2018:424, paragraph 16).
32


By contrast, the Treaty offers no guarantee to a company covered by Article 54 TFEU that transferring its place of effective management from one Member State to another Member State will be neutral as regards taxation. Given the relevant disparities in the tax legislation of the Member States, such a transfer may be to the company’s advantage in terms of tax or not, according to circumstances. Freedom of establishment cannot therefore 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 (judgment of 29 November 2011, National Grid Indus, C‑371/10, EU:C:2011:785, paragraph 62 and the case-law cited).
36


Such a difference in treatment resulting from a Member State’s tax legislation to the detriment of companies exercising their freedom of movement can be permissible only if it relates to cases which are not objectively comparable or if it is justified by an overriding reason in the public interest (judgments of 17 July 2014, Nordea Bank Danmark, C‑48/13, EU:C:2014:2087, paragraph 23, and of 17 December 2015, Timac Agro Deutschland, C‑388/14, EU:C:2015:829, paragraph 26).
37


As regards the first case referred to in the previous paragraph, it should be noted that, according to the case-law of the Court, 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 of 12 June 2018, Bevola and Jens W. Trock, C‑650/16, EU:C:2018:424, paragraph 32 and the case-law cited).
41


It follows that, where the host Member State has no tax jurisdiction over the tax year during which the loss at issue arose, the situation of a company, which has transferred its tax residency to that Member State and subsequently claims a loss there previously incurred in another Member State, is not comparable to that of a company the turnover of which was subject to the tax powers of the previous Member State on the basis of the tax year during which that company incurred that loss (see, by analogy, judgment of 17 December 2015, Timac Agro Deutschland, C‑388/14, EU:C:2015:829, paragraph 65).
43


In their written observations submitted to the Court, the United Kingdom Government and the European Commission nevertheless observed, in essence, that, according to case-law resulting from the judgment of 12 June 2018, Bevola and Jens W. Trock (C‑650/16, EU:C:2018:424, paragraph 38), the comparability of the situations depends on whether or not the loss at issue in the main proceedings is final.
44


In that regard, it should be noted that the Court held that, as regards losses attributable to a non-resident permanent establishment which has ceased activity and whose losses could not, and no longer can, be deducted from its taxable profits in the Member State in which it carried on its activity, the situation of a resident company possessing such an establishment is not different from that of a resident company possessing a resident permanent establishment, from the point of view of the objective of preventing double deduction of the losses, despite the fact that the situations of those two companies are not, in principle, comparable (see, to that effect, judgment of 12 June 2018, Bevola and Jens W. Trock, C‑650/16, EU:C:2018:424, paragraphs 37 and 38).
50


Second, as the Advocate General noted in points 72 and 73 of her Opinion, extending the scope of the rule in the judgment of 12 June 2018, Bevola and Jens W. Trock (C‑650/16, EU:C:2018:424, paragraph 38) to the case referred to in paragraph 45 above would also be incompatible with the Court’s case-law on exit taxation.
51


In that regard, the Court held, in essence, that Article 49 TFEU does not preclude the possibility of the Member State of origin of a company incorporated under the law of that Member State having transferred its place of effective management to another Member State, from taxing unrealised capital gains relating to assets of that company (see, to that effect, judgment of 29 November 2011, National Grid Indus, C‑371/10, EU:C:2011:785, paragraphs 59 and 64).