Judgment of the Court (Seventh Chamber) of 31 January 2013

Freedom of movement for personsFreedom of establishmentRestrictionsTax legislationTransfer of an undertaking or transfer of a registered office or actual head office of a company governed by national law to another Member StateNational legislation providing for immediate taxation of unrealised capital gains relating to the transfered assetsUnlawful (Art. 49 TFEU) (see paras 15, 17-19, 23, operative part)

Actions for failure to fulfil obligationsExamination of the merits by the CourtSituation to be taken into considerationSituation on expiry of the period laid down in the reasoned opinion (Art. 258 TFEU) (see para. 20)

Re:

Failure of a Member State to fulfil obligations — Interpretation of Article 49 TFEU — Exit tax for undertakings ceasing to have their tax residence in the Netherlands — Taxation of unrealised capital gains in the case of changing the undertaking’s residency, moving its permanent establishment or transferring its shares to another Member State.

Operative part

The Court:

Declares that, by adopting and maintaining in force a national rule providing for the taxation of unrealised capital gains on the transfer of an undertaking or when transferring a company’s registered office or actual head office to another Member State, the Kingdom of the Netherlands has failed to fulfil its obligations under Article 49 TFEU;

Orders the Kingdom of the Netherlands to pay the costs;

Orders the Federal Republic of Germany, the Kingdom of Spain, the Portuguese Republic, the Republic of Finland, the Kingdom of Sweden and the United Kingdom of Great Britain and Northern Ireland to bear their own costs.