27.4.2013

Official Journal of the European Union

C 123/9

(Case C-41/13)

2013/C 123/13

Language of the case: Dutch

Referring court

Parties to the main proceedings

Appellant: Inspecteur van de Belastingdienst Holland-Noord/kantoor Zaandam

Respondents: MSA International Holdings BV, MSA Nederland BV

Questions referred

1.Does denying the respondents the possibility of having the Netherlands fiscal unity regime applied to the activities and the assets of the sub-subsidiary/respondent [MSA Nederland], established in the Netherlands, constitute a restriction of the freedom of establishment within the meaning of Article 43 EC in conjunction with Article 48 EC? In that context, in the light of the objectives pursued by the Netherlands fiscal unity regime …, is the situation of the sub-subsidiary/respondent [MSA Nederland] objectively comparable … to (i) the situation of a company established in the Netherlands which is a subsidiary of an intermediate holding company established in the Netherlands which has not elected to be integrated in a fiscal unity with its parent company established in the Netherlands and which therefore, as a sub-subsidiary, similarly to [the] respondent [MSA Nederland], has no access to the fiscal unity regime with — exclusively — its grandparent company, or to (ii) the situation of a sub-subsidiary established in the Netherlands which, with its parent company/intermediate holding company established in the Netherlands, has elected to form a fiscal unity with [its] (grand)parent company established in the Netherlands and whose activities and assets therefore, in contrast to those of [the] respondent [MSA Nederland], are consolidated for tax purposes?

2.In answering the first sentence of Question 1, does it still make a difference … whether the foreign intermediate holding company concerned, if it does not operate in the Netherlands through a subsidiary but through a permanent establishment, had been able to elect — as regards the assets and the activities of that Netherlands permanent establishment — to form a fiscal unity with its parent company established in the Netherlands?

3.If and to the extent that the first sentence of Question 1 must be answered in the affirmative, can such a restriction then be justified by overriding reasons in the general interest, more particularly by the need to preserve tax consistency, including the prevention of the unilateral and bilateral double use of losses …?

4.If and to the extent that Question 3 must be answered in the affirmative, should such a restriction then be considered to be proportionate …?