7.9.2013

Official Journal of the European Union

C 260/5

(Case C-261/11) (<span class="super">1</span>)

(Failure of a Member State to fulfil obligations - Freedom of establishment - Article 49 TFEU - Article 31 of the EEA Agreement - Restrictions - Tax legislation - Transfer of assets to another Member State - Immediate taxation of unrealised capital gains)

2013/C 260/07

Language of the case: Danish

Parties

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

Defendant: Kingdom of Denmark (represented by: C. Vang and V. Pasternak Jørgensen, acting as Agents)

Interveners in support of the defendant: Federal Republic of Germany (represented by: K. Petersen and T. Henze, acting as Agents), Kingdom of Spain (represented by: A. Rubio González, acting as Agent), Kingdom of the Netherlands (represented by: C. Schillemans, C. Wissels and J. Langer, acting as Agents), Portuguese Republic (represented by: L. Inez Fernandes, acting as Agent), Republic of Finland (represented by: M. Pere, acting as Agent), Kingdom of Sweden (represented by: A. Falk and U. Persson, acting as Agents)

Re:

Failure of a Member State to fulfil obligations — Infringement of Article 49 TFEU and Article 31 EEA — Tax provisions laying down immediate taxation on exit for companies transferring assets to another Member State but not laying down an equivalent tax on transfers of assets within national territory

Operative part of the judgment

The Court:

1.Declares that, by adopting and maintaining in force Paragraph 8(4) of the Law on taxation of the income of share companies and other matters (Lov om indkomstbeskatning af aktieselskaber m.v., lovbekendtgørelse nr. 1376, 7 December 2010), concerning the immediate taxation of the income of share companies, and consequently a tax system providing for the immediate taxation of unrealised capital gains relating to a transfer of assets by a company established in Denmark to another Member State of the European Union or to a non-member country party to the Agreement on the European Economic Area of 2 May 1992, the Kingdom of Denmark has failed to fulfil its obligations under Article 49 TFEU and Article 31 of the EEA Agreement;

2.Orders the Kingdom of Denmark to pay the costs;

3.Orders the Federal Republic of Germany, the Kingdom of Spain, the Kingdom of the Netherlands, the Portuguese Republic, the Republic of Finland and the Kingdom of Sweden to bear their own costs.

(<span class="super">1</span>) OJ C 238, 13.8.2011.