13.8.2011   

EN

Official Journal of the European Union

C 238/21

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annul the Commission's decision of 26 January 2011, as amended on 15 April 2011, which, to the applicant's knowledge, is yet to be published in the Official Journal of the European Union;

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order the defendant to pay the costs of the proceedings.

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The Sanierungsklausel (Scheme on the fiscal carry-forward of losses in the case of restructuring of companies in difficulty) in Paragraph 8c(1a) of the German Law on Corporation Tax (Körperschaftssteuergesetz; ‘KStG’) is not State aid for the purposes of Article 107 TFEU. In classifying the system of reference the Commission erred in considering that system to be ‘the rules on … loss carry-forward for companies subject to change in their shareholding’. On the contrary, the applicant claims that the system of reference is actually the indefinite carry-forward of losses; the carry-forward is also used for the purposes of corporate taxation as a corollary of the objective net principle.

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The loss of carry-forwards provided for in Paragraph 8c KStG must therefore be classed as an exception, whilst the Sanierungsklausel in Paragraph 8c(1a) KStG, for its part, constitutes an exception to the exception which merely reinstates the general rule, thereby rendering the principle that taxable persons should contribute to State financing in accordance with their means (the Leistungsfähigkeitsprinzip) applicable in cases of corporate restructuring.

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It is true that the defendant acknowledges that ‘the system of reference is the KStG in its current form’, but it fails to appreciate that the legal situation in the Federal Republic was changed by the introduction of the Law on acceleration of growth (the Wachstumsbeschleunigungsgesetz). Since the introduction of the provision on hidden reserves in Paragraph 8c KStG, in healthy undertakings losses can still be deducted and carried forward where the changes made to the shareholding do not exceed the amount of the hidden reserves. Thus, for healthy undertakings, the provision on hidden reserves can be understood as the counterpart of the Sanierungsklausel for undertakings in difficulty, since otherwise, undertakings in need of restructuring would be disadvantaged in structural terms.

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Contrary to the Commission's complaint, the Sanierungsklausel, which treats economically sound undertakings and those in need of restructuring unequally, is not a selective measure, but the concretisation of the principle that taxable persons should contribute to State financing in accordance with their means, which is a constitutional principle which has always been recognised by the German Basic Law (Grundgesetz). In the applicant’s view, it thus forms part of the internal logic of the system of reference. The Sanierungsklausel is thus in conformity with the basic or guiding principles of the German tax system.

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In any case, on the basis of those guiding principles, the introduction of the Sanierungsklausel in Paragraph 8c KStG is a measure which is ‘justified by the nature and the logic of the [German tax] system’ and which, to an extent, revalidates that internal structure.