21.7.2012

Official Journal of the European Union

C 217/5

(Case C-164/12)

2012/C 217/09

Language of the case: German

Referring court

Parties to the main proceedings

Applicant: DMC Beteiligungsgesellschaft mbH

Defendant: Finanzamt Hamburg-Mitte

Questions referred

1.Is it compatible with Article 43 EC (or Article 49 TFEU) for a national provision to provide that, in the event of the contribution of partnership interests to a capital company, the business assets contributed must be assessed at their value as part of a going concern (and consequently, as a result of revealing undisclosed reserves, a capital gain arises for the transferor) where at the time of the non-cash contribution the Federal Republic of Germany has no right to tax in relation to the gain on the sale of the new company shares granted to the transferor in return for the contribution?

2.In the event that the first question must be answered in the negative: is the national provision compatible with Article 43 EC (or Article 49 TFEU) if the transferor is entitled to apply for the deferment, on an interest-free basis, of the tax arising as a consequence of revealing the undisclosed reserves, with the effect that the tax due on the gain may be paid in annual instalments, each of at least a fifth of the tax due, provided that the payment of the instalments is secured?