4.12.2010

Official Journal of the European Union

C 328/11

(Case C-371/10)

()

2010/C 328/19

Language of the case: Dutch

Referring court

Parties to the main proceedings

Applicant: National Grid Indus BV

Defendant: Inspecteur van de Belastingdienst Rijnmond (kantoor Rotterdam)

Question referred

1.If a Member State imposes on a company incorporated under the law of that Member State, which transfers its real company seat from that Member State to another Member State, a final settlement tax in respect of that transfer, can that company, in the present state of Community law, invoke Article 43 EC (now Article 49 TFEU) against that Member State?

2.If the first question must be answered in the affirmative: is a final settlement tax such as the one at issue, which is applied, without deferment and without the possibility of taking subsequent decreases in value into consideration, to the capital gains relating to the assets of the company which were transferred from the exit Member State to the host Member State, as assessed at the time of the transfer of the company seat, contrary to Article 43 EC (now Article 49 TFEU), in the sense that such a final settlement tax cannot be justified by the necessity of allocating the power to impose taxes between the Member States?

3.Does the answer to the previous question also depend on the circumstance that the final settlement tax in question relates to a (currency) profit which accrued under the tax jurisdiction of the Netherlands, whereas that profit cannot be reflected in the host Member State under the tax regime applicable there?