The Austrian legislation disallowed amortisation of goodwill in cases where a holding was acquired in a company established in a Member State other than Austria. The Austrian Administrative Court asked the CJEU:
AG Kokott noted that although the Austrian measures amounted to a tax benefit within the meaning of TFEU’s state aid provisions, the legislation did not confer a selective advantage to the undertakings in question and it did not constitute state aid.
However the AG then concluded that the measures were discriminatory because resident and non-resident subsidiaries are in objectively comparable situations and the restriction could not be justified because there was no direct link between the amortisation of the commercial value of the shareholding in a subsidiary and the allocation of profits of a subsidiary. In her opinion therefore, the Austrian regime constituted a restriction on the freedom of establishment.
Case C-66/14 Finanzamt Linz v Bundesfinanzgericht, AG’s Opinion, 16 April 2015 (not yet available in English)
