Judgment of the Court (Fourth Chamber) of 11 October 2007 (reference for a preliminary ruling from the Supremo Tribunal Administrativo - Portugal) - Erika Hollmann v Fazenda Pública

(Case C-443/06) ¹

(Direct taxation - Taxation of capital gains on immovable property - Free movement of capital - Basis of assessment - Discrimination - Cohesion of the tax system)

Language of the case: Portuguese

Referring court

Supremo Tribunal Administrativo

Parties to the main proceedings

Applicant: Erika Hollmann

Defendant: Fazenda Pública

Intervener: Ministério Público

Re:

Reference for a preliminary ruling - Supremo Tribunal Administrativo - Interpretation of Articles 12 EC, 18 EC, 39 EC, 43 EC and 56 EC - Taxation of capital gains realised on the transfer for valuable consideration of real property - Exclusion from the part exemption provided for for persons residing in Portugal of capital gains realised on such transfers made by persons residing in another Member State

Operative part of the judgment

Article 56 EC must be interpreted as precluding national legislation, such as that in dispute in the main proceedings, which subjects capital gains resulting from the transfer of immovable property situated in a Member State, in this case Portugal, where that transfer is made by a resident of another Member State, to a tax burden greater than that which would be applicable for the same type of transaction to capital gains realised by a resident of the State in which that immovable property is situated.

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¹ - OJ C 326, 30.12.2006.