Judgment of the Court (Seventh Chamber) of 31January 2013— Commission v Netherlands
(Case C‑301/11)
Tax legislation — Transfer of a residence for tax purposes — Freedom of establishment — Article49 TFEU — Taxation of unrealised capital gains — Immediate exit tax
1.Freedom of movement for persons — Freedom of establishment — Restrictions — Tax legislation — Transfer of an undertaking or transfer of a registered office or actual head office of a company governed by national law to another Member State — National legislation providing for immediate taxation of unrealised capital gains relating to the transfered assets — Unlawful (Art. 49 TFEU) (see paras 15, 17-19, 23, operative part)
2.Actions for failure to fulfil obligations — Examination of the merits by the Court — Situation to be taken into consideration — Situation on expiry of the period laid down in the reasoned opinion (Art. 258 TFEU) (see para. 20)
Re:
| Failure of a Member State to fulfil obligations — Interpretation of Article49 TFEU — Exit tax for undertakings ceasing to have their tax residence in the Netherlands — Taxation of unrealised capital gains in the case of changing the undertaking’s residency, moving its permanent establishment or transferring its shares to another Member State. |
Operative part
The Court:
1. |
| Declares that, by adopting and maintaining in force a national rule providing for the taxation of unrealised capital gains on the transfer of an undertaking or when transferring a company’s registered office or actual head office to another Member State, the Kingdom of the Netherlands has failed to fulfil its obligations under Article49 TFEU; |
2. |
| Orders the Kingdom of the Netherlands to pay the costs; |
3. |
| Orders the Federal Republic of Germany, the Kingdom of Spain, the Portuguese Republic, the Republic of Finland, the Kingdom of Sweden and the United Kingdom of Great Britain and Northern Ireland to bear their own costs. |