The aim of the European Court of Justice (ECJ) is to safeguard European fundamental freedoms. As the largest European court, it is up to the ECJ to uphold the interpretation of the EU treaties. Cases brought before the ECJ are often cases in which European fundamental freedoms are disregarded by prohibitions, discrimination or undue restrictions. The ECJ judgment of 06.09.2012 – Az. C-38/10 and the analysis of the judgment are particularly related to tax law. The tax law of the individual Member States is not entirely uniform, as each Member State still has its own tax rules and laws. Here, in particular when persons or companies move and/or leave, there may be violations of European fundamental freedoms (in particular freedom of movement of capital and freedom of establishment). In such cases, the ECJ must be appealed to as a judicial authority.

If a Portuguese corporation transfers its registered office or effective management to another state, are by type. 76 A of the Portuguese Corporate Income Tax Act to subject to immediate taxation assets which, after leaving, no longer remain part of a Portuguese permanent establishment. Thus, the Portuguese final taxation in exit cases corresponds to the Dutch scheme (Art. 8 Wet VPB i.V.m. Art. 16 Wet IB). 76 B of the Portuguese Corporate Tax Act stipulates that a final tax due immediately is also levied when a foreign legal entity transfers its Portuguese assets to a foreign permanent establishment.

It is not surprising that the ECJ, referring to the judgment of National Grid Indus[735], found that the 76 A and Art. 76 B of the Portuguese Corporate Tax Act, immediate taxation constitutes a restriction on the freedom of establishment.[736] As in the National Grid Indus judgment, the interference with the freedom of establishment could not be justified by maintaining a balanced distribution of taxation powers between the Member States, since the deferral of payment in this case constitutes a milder means of achieving the objective pursued.[737] In the absence of proportionality of the measure, the Portuguese Government infringes Art. 76 A and Art. 76 B against the freedom of establishment.[738]

Unmentioned was the question of whether the Portuguese DTA understanding coincides with the Dutch or the German. If the Portuguese taxation right remains on the hidden reserves generated in Portugal according to Portuguese tax law and understanding of the agreement even after the departure of the limited company or company member. received after the transfer of the assets, the ECJ should not have allowed for the measure in question the justification that a balanced distribution of taxation powers should be maintained.

The fact that the judgment lacks depth overall is also clear from the fact that the ECJ did not include the transfer of merchandise in its decision-making at all; Finally, for the division of current profits between two establishments by type. 7 par. 2 OECD-MA consistently clarified that each establishment is entitled to the share of the total profit from the sale of the merchandise that the establishment could have obtained as an independent company and, in such cases, the Portuguese right of taxation of the profits generated by the Portuguese establishment is retained anyway.