17.11.2012

Official Journal of the European Union

C 355/2

(Case C-38/10)(Failure of a Member State to fulfil obligations - Article 49 TFEU - Tax legislation - Transfer of residence for tax purposes - Transfer of assets - Immediate exit tax)

2012/C 355/02

Language of the case: Portuguese

Parties

Applicant: European Commission (represented by: R. Lyal, G. Braga da Cruz and P. Guerra e Andrade, acting as Agents)

Defendant: Portuguese Republic (represented by: L. Fernandes and J. Menezes Leitão, acting as Agents)

Interveners in support of the defendant: Kingdom of Denmark (represented by: C. Vang, acting as Agent), Federal Republic of Germany (represented by: C. Blaschke and K. Petersen, acting as Agents), Kingdom of Spain (represented by: M. Muñoz Pérez and A. Rubio González, acting as Agents), French Republic (represented by: G. de Bergues and N. Rouam, acting as Agents), Kingdom of the Netherlands (represented by: C. Wissels and M. de Ree, acting as Agents), Republic of Finland (represented by: J. Heliskoski, acting as Agent), Kingdom of Sweden (represented by: A. Falk and S. Johannesson, acting as Agents), United Kingdom of Great Britain and Northern Ireland (represented by: S. Hathaway and A. Robinson, acting as Agents)

Re:

Failure of a Member State to fulfil obligations — Infringement of Article 49 TFEU and of Article 31 of the EEA Agreement — Provisions of tax legislation by virtue of which companies ceasing to be resident for tax purposes in Portugal or transferring their assets to another State must immediately pay an exit tax

Operative part of the judgment

The Court:

1.Declares that, by adopting and maintaining in force Articles 76 A and 76 B of the Corporation Tax Code (Código do Imposto sobre o Rendimento das Pessoas Colectivas), which are applicable in the case of transfer, by a Portuguese company, of its registered office and its effective management to another Member State or in the case of transfer, by a company not resident in Portugal, of some or all of the assets attached to a Portuguese permanent establishment from Portugal to another Member State, and which prescribe the immediate taxation of unrealised capital gains relating to the assets concerned but not of unrealised capital gains resulting from purely national operations, the Portuguese Republic has failed to fulfil its obligations under Article 49 TFEU;

2.Dismisses the action as to the remainder;

3.Orders the Portuguese Republic to pay the costs.

(1) OJ C 80, 27.3.2010.