(January 26, 2015)
On January 22, 2015 the opinion of Advocate General J. Kokott in Case C-683/13, X AB (Freedom of establishment – Free movement of Capital) was published on the website of the European Court of Justice (CJEU). Unfortunately no English version of this opinion has been published on the website of the CJEU yet. The opinion however is available in many other languages (eg Spanish, Dutch, German, French, etc.).
The following question was referred to the CJEU for a preliminary ruling:
Do Article 49 TFEU and Article 63 TFEU preclude national legislation of a Member State according to which the state of residency does not allow a deduction of a currency exchange loss that is an integral part of a capital loss incurred on shares in an entity which is a resident of another Member where these shares are held for business purposes, if the Member State of residency has a system that does not take into account capital gains or capital losses on such shares for the determination of the basis of assessment?
The Advocate proposes the following:
First the Advocate General concludes that in the underlying case it should be investigated whether the freedom of establishment as arranged by Article 49 TFEU is violated, which as lex specialis, excludes the applicability of the free movement of capital as arranged by Article 63, paragraph 1 TFEU.
The Advocate General proposes that the Court gives the following reply to the question referred for a preliminary ruling by the Högsta förvaltningsdomstol:
Article 49 TFEU, as applicable in a case as that in the main proceedings, does preclude national legislation according to which the Member State of which the parent company is a resident denies a deduction of a currency exchange loss, which is an integral part of a capital loss incurred on shares held in a subsidiary which is a resident of another Member State, where such shares are held for business purposes, if the Member State of which the parent company is a resident applies a system that does not take into account capital gains or capital losses on such shares for the determination of the basis of assessment.
Click here to be forwarded to the opinion of the Advocate General as published on the website of the CJEU.
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