ECJ-Recent Developments in Direct Taxation 2013

S. 36I. The case

The Danish ECJ case on direct taxation of 2013 is case C-48/13, Nordea Bank Denmark A/S v Ministry of Taxation. The case deals with recapture of losses from a principal company resident in Denmark for tax purposes, whose permanent establishment is situated outside Denmark, following the transfer of that permanent establishment to another company within the group. The case is based on the Danish rules on consolidated taxation of groups which were in force until 2005.

The case is a request for a preliminary ruling under Article 267 TFEU from the Eastern High Court in Copenhagen, regarding Article 48 EC (now Article 49 TFEU) and Article 31 of the EEA Agreement. The Danish public limited company Nordea Bank A/S had, as a principal company, set up a permanent establishment in Sweden in 1996. Subsequently the company set up permanent establishments in Finland and Norway in 1997. As a result of a restructuring of the Nordea group, the three permanent establishments of the company were closed down during the year 2000. In all of the fiscal years from 1996 to 2000 the permanent establishments had incurred losses. The total losses for all three PEs amounted to 204.402.324 DKK (= 27...