Case C-384/09
Prunus SARL and Polonium SA
v
Directeur des services fiscaux
(Reference for a preliminary ruling from the
tribunal de grande instance de Paris)
(Direct taxation – Free movement of capital – Article 64 TFEU – Legal persons established in a non-Member State – Ownership of immovable property located in a Member State – Tax on the market value of that property – Refusal of exemption – Assessment with regard to overseas countries and territories – Combating tax evasion – Joint and several liability)
Summary of the Judgment
1.Free movement of capital – Provisions of the Treaty – Territorial scope – Overseas countries and territories – Whether they are included as non‑Member States
(Art. 63 TFEU)
2.Free movement of capital – Restrictions on movements of capital to and from non-Member States – Restrictions existing on 31 December 1993 – Tax on the market value of immovable property
(Arts 63 and 64(1) TFEU)
1.In view of the unlimited territorial scope of Article 63 TFEU, it must be regarded as necessarily applying to movements of capital to and from overseas countries and territories (OCTs).
However, OCTs are subject to the special association arrangements set out in Part Four of the Treaty, with the result that, failing express reference, the general provisions of the Treaty, whose territorial scope is in principle confined to the Member States, do not apply to them. OCTs therefore benefit from the provisions of Union law in a similar manner to the Member States only when Union law expressly provides that OCTs and Member States are to be treated in such a manner.
The EU and FEU Treaties do not contain any express reference to movements of capital between Member States and OCTs. It follows that OCTs benefit from the liberalisation of the movement of capital provided for in Article 63 TFEU in their capacity as non‑Member States.
(see paras 20, 29-31)
2.Article64(1) TFEU must be interpreted as meaning that Article 63 TFEU is without prejudice to the application of national legislation in force on 31 December 1993 which exempts from the tax on the market value of immovable property located in the territory of a Member State of the European Union companies having their registered office in the territory of that State and makes entitlement to that exemption, for a company whose registered office is in an overseas country or territory, conditional either on the existence of a convention on administrative assistance to combat tax evasion and avoidance concluded between that Member State and that territory or on there being a requirement, under a treaty containing a clause prohibiting discrimination on grounds of nationality, that those legal persons are not to be taxed more heavily than companies established in the territory of that Member State.
(see para. 38, operative part)