19.3.2011

Official Journal of the European Union

C 89/11

(Case C-18/11)

2011/C 89/20

Language of the case: English

Referring court

Parties to the main proceedings

Applicant: The Commissioners for Her Majesty's Revenue & Customs

Defendant: Philips Electronics UK Ltd

Questions referred

1.Where a Member State (such as the UK) includes in its tax base the profits and losses of a company incorporated and tax resident in another Member State (such as the Netherlands) to the extent that the profits are attributable to a business carried on by the Netherlands company in the UK through a permanent establishment situated in the UK, is it a restriction on the freedom of a national of a Member State to establish in the UK under Article 49 TFEU (ex Article 43 EC) for the UK to prevent the surrender of the UK losses of a permanent establishment situated in the UK of a non-UK resident company to a UK company by way of group relief where any part of those losses or any amount brought into account in computing them ‘corresponds to, or is represented in, any amount which, for the purposes of any foreign tax is (in any period) deductible from or otherwise allowable against non-UK profits of the company or any person’ Le. to permit the surrender of UK losses in the case of a permanent establishment situated in the UK only where it is clear that at the time of the claim there can never be any deduction or allowance in any State outside the UK (including another Member State (such as the Netherlands)), and it being insufficient that relief available overseas has not in fact been claimed, and in circumstances where there is no equivalent condition applicable to the surrender of UK losses of a UK resident company?

2.If so, is that restriction capable of being justified:

a)solely on the basis of the need to prevent the double use of losses, or

b)solely on the basis of the need to preserve the balanced allocation of taxing powers between Member States, or

c)on the basis of the need to preserve the balanced allocation of taxing powers between Member States in conjunction with the need to prevent the double use of losses?

3.If so, is the restriction proportionate to such justification or justifications?

4.If any restriction on the rights of the Netherlands company is not justified or to the extent that it is not proportionate to any justification, does EU law require the UK to provide the UK company with a remedy such as the right to claim group relief against its profits?