26.4.2008

Official Journal of the European Union

C 107/4

(Case C-293/06)(Freedom of establishment - Taxation of companies - Monetary effects upon the repatriation of start-up capital granted by a company established in one Member State to its permanent establishment in another Member State)

(2008/C 107/05)

Language of the case: German

Referring court

Parties to the main proceedings

Applicant: Deutsche Shell GmbH

Defendant: Finanzamt für Großunternehmen in Hamburg

Re:

Preliminary ruling — Finanzgericht Hamburg — Interpretation of Articles 43 EC and 48 EC — Currency exchange loss incurred by a company established in one Member State at the time of repatriation of the start-up capital which it had granted to a permanent establishment set up in another Member State — Not possible to take that loss into account for purposes of taxation in the Member State in which the company is established

Operative part of the judgment

1)It is contrary to Article 52 of the EC Treaty (now, after amendment Article 43 EC) in conjunction with Article 58 of the EC Treaty (now Article 48 EC) for a Member State, when determining the national basis of assessment, to exclude a currency loss suffered by a company with a registered office in that State upon the repatriation of start-up capital granted to its permanent establishment in another Member State.

2)It is also contrary to Article 52 of the EC Treaty (now, after amendment, Article 43 EC) in conjunction with Article 58 of the EC Treaty (now Article 48 EC) for a Member State to allow a currency loss to be deducted as operating expenditure in respect of an undertaking with a registered office in a Member State only in so far as its permanent establishment in another Member State does not make any tax-free profits.

(1) OJ C 237, 30.9.2006