18.4.2017

Official Journal of the European Union

C 121/12

(Case C-28/17)

(2017/C 121/18)

Language of the case: Danish

Referring court

Parties to the main proceedings

Applicant: NN A/S

Defendant: Skatteministeriet

Questions referred

1.What factors are to be taken into account in assessing whether resident companies in a situation such as the present one are subject to an ‘equivalent condition’ within the meaning of paragraph 20 of the Philips judgment, with respect to the setting off of losses, to that applicable to branches of non-resident companies?

2.If it is presumed that the Danish tax rules do not contain a difference of treatment as dealt with in the Philips case, does a prohibition of setting off similar to that described — in a case in which the loss in the non-resident company’s permanent establishment is also subject to the host country’s power of taxation — in itself constitute a restriction of the right of freedom of establishment under Article 49 TFEU, which has to be justified by reference to overriding reasons of the public interest?

3.If so, can such a restriction then be justified by the interest in preventing the double use of losses, the objective of ensuring a balanced distribution of powers of taxation between the Member States, or a combination of both?

4.If so, is such a restriction proportionate?

(1) Judgment of the Court of 6 September 2012, C-18/11 (EU:C:2012:532).