Official Journal of the European Union

C 401/5

(Case C-431/21)

(2021/C 401/06)

Language of the case: German

Referring court

Parties to the main proceedings

Applicant: X GmbH & Co. KG

Defendant: Finanzamt Bremen

Question referred

Must Article 43 of the EC Treaty and Article 49 TFEU, which guarantee the freedom of establishment (or, respectively, Article 49 of the EC Treaty and Article 56 TFEU, which guarantee the freedom to provide services), be interpreted as precluding national legislation under which, in situations involving transactions with a foreign element, the taxpayer must keep records on the nature and content of his or her business relations with related parties, including the economic and legal bases for an arm’s length agreement on prices and other terms and conditions with the related parties, and under which, where the taxpayer fails to submit those records when requested to do so by the tax authority, or where the records submitted are fundamentally unusable, not only is there a rebuttable presumption that his or her income subject to tax domestically, which such records serve to determine, is higher than the income that he or she has declared, and, if in such cases the tax authority is required to make an estimate and such income can be determined only within a certain range, in particular only on the basis of price bands, the upper value of that range may be taken as the basis to the detriment of the taxpayer, but, in addition, a surcharge is to be imposed which is at least 5 per cent and at most 10 per cent of the excess income determined, but not less than EUR 5 000, and which, in the event that usable records are submitted late, is up to EUR 1 000 000, but not less than EUR 100 for each full day of delay, whereby the imposition of a surcharge is to be waived only if the non-compliance with the record-keeping obligations appears to be excusable or if any fault involved is only minor?