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27.4.2013   

EN

Official Journal of the European Union

C 123/9

Request for a preliminary ruling from the Gerechtshof te Amsterdam (Netherlands) lodged on 25 January 2013 — X AG and Others v Inspecteur van de Belastingdienst Amsterdam

(Case C-40/13)

2013/C 123/12

Language of the case: Dutch

Referring court

Gerechtshof te Amsterdam

Parties to the main proceedings

Appellants: X AG, X1 Holding GmbH, X2 Holding GmbH, X3 Holding BV, D1 BV, D2 BV, D3 BV

Respondent: Inspecteur van de Belastingdienst Amsterdam

Questions referred

1.

Does denying the appellants the opportunity to have the Netherlands fiscal unity regime applied to the activities and assets of the sister companies X3 Holding, D1 and D2, established in the Netherlands, constitute a restriction of the freedom of establishment within the meaning of Article 43 EC in conjunction with Article 48 EC?

In that context, in the light of the objectives pursued by the Netherlands fiscal unity regime …, is the situation of X3 Holding, D1 and D2 objectively comparable … to (i) the situation of sister companies, established in the Netherlands, which have not elected to be integrated in a fiscal unity with their common parent company (-ies), established in the Netherlands, and which therefore, jointly as sister companies, similarly to the appellants, have no access to the fiscal unity regime, or to (ii) the situation of sister companies, established in the Netherlands, which, together with their common parent company (-ies), established in the Netherlands, have elected to form a fiscal unity with their parent company (-ies) and whose activities and assets therefore, in contrast to those of the appellants, are consolidated for tax purposes?

2.

In answering the first sentence of Question 1, does it still make a difference … whether the companies concerned have (i), as in the case of D1 and D2, a common (direct) parent company in the other Member State or (ii), as in the case of, on the one hand, X3 Holding, and, on the other hand, D1 and D2, various (direct) parent companies in the other Member State, with the result that it is only at a higher level — albeit situated in that other Member State — of the group structure that there is a common (indirect) parent company of those various companies?

3.

If and to the extent that the first sentence of Question 1 must be answered in the affirmative, can such a restriction then be justified by overriding reasons in the general interest, more particularly by the need to preserve tax consistency, including the prevention of unilateral and bilateral double use of losses …?

4.

If and to the extent that Question 3 must be answered in the affirmative, should such a restriction be considered to be proportionate …?