23.3.2013

Official Journal of the European Union

C 86/4

(Case C-301/11)(1)

(Tax legislation - Transfer of a residence for tax purposes - Freedom of establishment - Article 49 TFEU - Taxation of unrealised capital gains - Immediate exit tax)

2013/C 86/05

Language of the case: Dutch

Parties

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

Defendant: Kingdom of the Netherlands (represented by: C.Wissels, J. Langer and M. de Ree, acting as Agents)

Interveners in support of the defendant: Federal Republic of Germany (represented by: T. Henze and K. Petersen, acting as Agents), Kingdom of Spain (represented by: A. Rubio González, acting as Agent), Portuguese Republic (représentant: L. Inez Fernandes, acting as Agent)

Re:

Failure of a Member State to fulfil obligations — Interpretation of Article 49 TFEU — Exit tax for undertakings ceasing to have their tax residence in the Netherlands — Taxation of unrealised capital gains in the case of changing the undertaking’s residency, moving its permanent establishment or transferring its shares to another Member State

Operative part of the judgment

The Court:

1.Declares that, by adopting and maintaining in force a national rule providing for the taxation of unrealised capital gains on the transfer of an undertaking or when transferring a company’s registered office or actual head office to another Member State, the Kingdom of the Netherlands has failed to fulfil its obligations under Article 49 TFEU;

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

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

(1) OJ C 252, 27.8.2011.