Request for a preliminary ruling from the Finanzgericht Köln (Germany) lodged on 14 August 2014 — Timac Agro Deutschland GmbH v Finanzamt Sankt Augustin

(Case C-388/14)

Language of the case: German

Referring court

Finanzgericht Köln

Parties to the main proceedings

Applicant: Timac Agro Deutschland GmbH

Defendant: Finanzamt Sankt Augustin

Questions referred

Is Article 49 TFEU (Article 43 EC) to be interpreted as precluding a provision such as Paragraph 52(3) of the Einkommensteuergesetz (Law on income tax, ‘EStG’), in so far as the cause of the reinstatement of an amount corresponding to losses of a foreign permanent establishment previously taken into account by way of a tax reduction is the sale of that permanent establishment to another company limited by shares within the same group as the seller, and not the making of profits?

Is Article 49 TFEU (Article 43 EC) to be understood as precluding a provision such as Article 23(1)(a) of the DBA Deutschland/Österreich 2000 (2000 Double taxation convention between Germany and Austria) — according to which income from Austria is to be exempt from the basis of assessment for German taxation if that income can be taxed in Austria — if losses accrued in an Austrian permanent establishment of a German company limited by shares can no longer be taken into account in Austria because the permanent establishment is sold to an Austrian company limited by shares belonging to the same group as the German company?