![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
Court of Justice of the European Communities (including Court of First Instance Decisions) |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just £5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Geurts & Vogten (Free movement of capital) [2007] EUECJ C-464/05 (25 October 2007) URL: https://www.bailii.org/eu/cases/EUECJ/2007/C46405.html Cite as: [2007] EUECJ C-464/05, [2007] EUECJ C-464/5 |
[New search] [Printable version] [Help]
(Articles 43 EC and 56 EC National tax legislation Inheritance tax Family company Exemption Conditions Employment of a certain number of workers in a region of a Member State)
In Case C-464/05,
REFERENCE for a preliminary ruling under Article 234 EC, by the rechtbank van eerste aanleg te Hasselt (Belgium), made by decision of 21 December 2005, received at the Court on 27 December 2005, in the proceedings
Maria Geurts,
Dennis Vogten
v
Administratie van de BTW, registratie en domeinen,
Belgische Staat,
composed of K. Lenaerts, President of Chamber, R. Silva de Lapuerta, E. Juhász (Rapporteur), J. Malenovský and T. von Danwitz, Judges,
Advocate General: J. Kokott,
Registrar: M. Ferreira, Principal Administrator,
having regard to the written procedure and further to the hearing on 7 December 2006,
after considering the observations submitted on behalf of:
M. Geurts and D. Vogten, by A. van Zantbeek, A. Nijs and A. Verbeke, advocaten,
the Belgian Government, by M. Wimmer and L. Van den Broeck, acting as Agents, assisted by R. Deblauwe, C. Docclo and N. Labeeuw, advocaten,
the Commission of the European Communities, by R. Lyal and A. Weimar, acting as Agents,
after hearing the Opinion of the Advocate General at the sitting on 15 February 2007,
gives the following
Legal context
National legislation
'1. In derogation from Articles 48 and 482 the net value of the following shall be exempted from inheritance tax:
(a) assets invested by the deceased or his or her spouse in a family undertaking in the course of business; and
(b) shares in a family company or claims against such a company, on condition that in the three years preceding the death of the deceased at least 50% of the undertaking or the shares in the company belonged continuously to the deceased and/or his or her spouse, and that they are mentioned voluntarily in the declaration of estate.
...
2. 'Family undertaking' means an industrial, commercial, traditional or agricultural undertaking or a profession operated or carried on personally by the deceased and/or his or her spouse, with or without the collaboration of other persons.
3. 'Family company' means a company of which the actual seat of management is situated in one of the Member States of the European Union and which:
either itself complies with the conditions laid down in paragraphs 1, 5 and 8;
or holds shares and, if appropriate, claims of subsidiaries which comply with those conditions.
...
5. The exemption shall be granted only on condition that the undertaking or company employed at least five full-time workers in the Flemish Region in the three years preceding the death of the deceased.
In derogation from the first subparagraph, the exemption shall apply to 20%, 40%, 60% or 80% respectively of the net value defined in paragraph 9, where the undertaking or the company employed one, two, three or four full-time workers in the Flemish Region in the three years preceding the death of the deceased. The exemption may be granted and maintained only if the shares or claims belong for five years following the death of the deceased to the heirs benefiting from the reduction. ...
The number of workers employed shall be determined on the basis of the declarations required under social legislation. ...
The exemption shall be maintained only if the number of full-time members of staff employed in the Flemish Region is kept at the same level each year in the first five years following the death of the deceased. ...
...
8. The undertaking or company may claim the exemption only if, in the period from three years before to five years after the death of the deceased and in accordance with the provisions of the Royal Decree of 8 October 1976 on the annual accounts of undertakings, it draws up annual accounts which are also used in support of the income or corporation tax declaration.
Undertakings or companies which do not have their seat in the territory of the Flemish Region must draw up annual accounts in accordance with the relevant legislation applicable in the place in which they are established.
...
10. Under penalty of withdrawal, Article 60a shall be applicable only if the following conditions are satisfied:
1. the declaration explicitly requests the application of Article 60a;
2. the certificate issued by the Flemish Region showing that the conditions relating to employment and capital laid down in this article have been satisfied is attached to the declaration.
...
11. Heirs who wish to use the provisions of Article 60a shall send an application by registered post to the Flemish Government in order to obtain the certificate referred to in paragraph 10.
...'
The main proceedings and the question referred for a preliminary ruling
'Must Community law, and in particular Articles 43 EC and 56 EC, be interpreted as meaning that a restriction arising from a provision in the legislation of a region of a Member State concerning inheritance, in this case Article 60a [of the Inheritance Tax Code], which exempts the shares in a family company or the claims of the legal successor of the deceased, his heir, against such a company from inheritance tax if the company has employed at least five workers in the three years prior to the death of the deceased, but restricts that exemption to cases in which [those] workers have been employed in a particular region of that Member State (in casu, the Flemish Region), is incompatible with those articles?'
The question referred for a preliminary ruling
Costs
On those grounds, the Court (Fourth Chamber) hereby rules:
In the absence of valid justification, Article 43 EC precludes inheritance tax legislation of a Member State which excludes from the exemption from that tax available for family undertakings those undertakings which employ in the three years preceding the date of death of the deceased at least five workers in another Member State, whereas it grants such an exemption where the workers are employed in a region of the first Member State.
[Signatures]
* Language of the case: Dutch.