13.8.2011

Official Journal of the European Union

C 238/5

(Case C-261/11)

2011/C 238/09

Language of the case: Danish

Parties

Applicant: European Commission (represented by: R. Lyal and N. Fenger, acting as Agents)

Defendant: Kingdom of Denmark

Form of order sought

—declare that, by introducing and maintaining legislation on immediate taxation on exit of companies’ transfers of assets to another Member State without taxing corresponding transfers of assets within Denmark, the Kingdom of Denmark has failed to fulfil its obligations under Article 49 TFEU and Article 31 of the EEA Agreement;

—order the Kingdom of Denmark to pay the costs.

Pleas in law and main arguments

Under Danish tax legislation, the transfer of an undertaking’s assets for use outside Denmark is regarded as a sale and is taxed accordingly, whereas an undertaking within the country is regarded as having ceased only when the assets in question are in actual fact sold. An undertaking which transfers assets between different establishments within Denmark is thus not taxed on the value of those assets in connection with such a transfer. If, however, the same undertaking transfers assets to a fixed establishment outside Denmark, it will immediately pay tax on the value of the assets in the same way as if the assets had been sold.

In the Commission’s view, that difference in treatment constitutes an obstacle to the freedom of establishment, contrary to Article 49 TFEU. The Commission does not call into question Denmark’s ability to impose tax on increases in value received by an undertaking while it is established in Denmark. However, the Commission finds that the circumstances on the basis of which the tax liability arises should be the same, that is, the realisation of an asset or a factor as a result of which depreciation can be adjusted, regardless of whether the capital values concerned are transferred abroad or remain in Denmark.

In the Commission’s view, there is no reason for tax to be collected immediately with respect to unrealised increases in value in connection with the transfer of assets in Denmark to another Member State if such a tax is not imposed in equivalent national situations. The Kingdom of Denmark could thus, for example, determine the value of the unrealised increases in value which it considers it has the right to tax, without that implying the immediate collection of tax or compliance with further conditions for deferring payment of tax.