The Court of Justice has repeatedly held that fundamental freedoms do not require a Member State to take account, for the purposes of applying its tax law, of the possible adverse consequences arising from the particularities of the legislation of another Member State.  6 See judgments of 23 October 2008, Krankenheim Ruhesitz am Wannsee-Seniorenheimstatt (C‑157/07, EU:C:2008:588, paragraph 49), and of 7 November 2013, K (C‑322/11, EU:C:2013:716, paragraph 79). In particular, in accordance with settled case-law, freedom of establishment does not require a Member State to draw up its tax rules on the basis of those in another Member State in order to ensure, in all circumstances, taxation which removes all disparities arising from national tax rules.  7 Judgments of 28 February 2008, Deutsche Shell (C‑293/06, EU:C:2008:129, paragraph 43); of 23 October 2008, Krankenheim Ruhesitz am Wannsee-Seniorenheimstatt (C‑157/07, EU:C:2008:588, paragraph 50); and of 29 November 2011, National Grid Indus (C‑371/10, EU:C:2011:785, paragraph 62). See also in this sense judgments of 6 December 2007, Columbus Container Services (C‑298/05, EU:C:2007:754, paragraph 51), and of 10 June 2015, X (C‑686/13, EU:C:2015:375, paragraph 33) with respect to the choice between various Member States of establishment. Specifically on double taxation, see judgments of 15 April 2010, CIBA (C‑96/08, EU:C:2010:185, paragraph 28); of 1 December 2011, Commission v Hungary (C‑253/09, EU:C:2011:795, paragraph 83); and of 21 November 2013, X (C‑302/12, EU:C:2013:756, paragraph 29). With respect to tax notification duties, see also judgment of 14 April 2016, Sparkasse Allgäu (C‑522/14, EU:C:2016:253, paragraph 31). On the free movement of capital, see also judgments of 12 February 2009, Block (C‑67/08, EU:C:2009:92, paragraph 31), and of 8 December 2011, Banco Bilbao Vizcaya Argentaria (C‑157/10, EU:C:2011:813, paragraph 39).

This ‘autonomy principle’  8 In connection with the principles cited, the Court of Justice has referred several times to a ‘certain autonomy’ that Member States have in the area of direct taxation. See judgments of 6 December 2007, Columbus Container Services (C‑298/05, EU:C:2007:754, paragraph 51); of 12 February 2009, Block (C‑67/08, EU:C:2009:92, paragraph 31); and of 1 December 2011, Commission v Hungary (C‑253/09, EU:C:2011:795, paragraph 83). ultimately means that a Member State does not breach fundamental freedoms when adverse treatment in cross-border situations results solely from taking into account the tax rules of another Member State. This is because the tax regime of each Member State is to be viewed autonomously.  9 The reverse holds true as well: a Member State’s legislation restricts fundamental freedoms even where adverse treatment caused by it alone is offset by the legislation of another Member State. See my Opinion in SCA Group Holding and Others (C‑39/13 to C‑41/13, EU:C:2014:104, point 50 and the case-law cited there). See also in this sense the judgment of 8 November 2007, Amurta (C‑379/05, EU:C:2007:655, paragraph 78).

The Court of Justice applied this principle, for instance, in ruling that a Member State is not obliged to make the manner in which it levies taxes dependent on whether another Member State does it the same way.  10 See judgments of 12 February 2009, Block (C‑67/08, EU:C:2009:92, paragraphs 28 to 31), and of 15 April 2010, CIBA (C‑96/08, EU:C:2010:185, paragraph 28).

Also, in connection with so-called exit taxation, the Court of Justice has held on the basis of the autonomy principle that a Member State is not obliged to take into account decreases in the value of a company’s assets that are realised after the transfer of its place of management to another Member State based on whether the tax law of the host Member State allows such decreases in value be taken into account.  11 See judgment of 29 November 2011, National Grid Indus (C‑371/10, EU:C:2011:785, paragraphs 61 and 62).

Furthermore, under the autonomy principle, the cross-border treatment of losses also cannot be made dependent on whether the tax law of the other Member State does not allow losses sustained by a non-resident subsidiary to be carried forward  12 See judgment of 3 February 2015, Commission v United Kingdom (C‑172/13, EU:C:2015:50, paragraph 33 and the case-law cited there). or generally does not provide for losses incurred on the sale of a property situated there to be taken into account.  13 See judgment of 7 November 2013, K (C‑322/11, EU:C:2013:716, paragraphs 79 to 81).

In all of these cases, the adverse treatment of the cross-border situation is at least equally attributable to the other Member State and is therefore the consequence of the allocation of tax powers between the Member States  14 In this sense, see judgment of 23 October 2008, Krankenheim Ruhesitz am Wannsee-Seniorenheimstatt (C‑157/07, EU:C:2008:588, paragraphs 51 and 52). or the parallel exercise of such powers.  15 In this sense, see judgments of 14 November 2006, Kerckhaert und Morres (C‑513/04, EU:C:2006:713, paragraph 20), and of 15 April 2010, CIBA (C‑96/08, EU:C:2010:185, paragraph 25). However, if adverse treatment results solely from the interaction of the legal provisions of two Member States, it cannot be attributed to either Member State as a restriction on a fundamental freedom.  16 The effects of the autonomy principle are classified as not constituting a restriction on fundamental freedoms in the judgments of 6 December 2007, Columbus Container Services (C‑298/05, EU:C:2007:754, paragraphs 50 to 54); of 12 February 2009, Block (C‑67/08, EU:C:2009:92, paragraphs 23 to 31), of 10 June 2015, X (C‑686/13, EU:C:2015:375, paragraphs 33 to 35); and of 14 April 2016, Sparkasse Allgäu (C‑522/14, EU:C:2016:253, paragraphs 24 to 32). In connection with the justification of a restriction, on the other hand, the autonomy principle is addressed in the judgments of 28 February 2008, Deutsche Shell (C‑293/06, EU:C:2008:129, paragraphs 41 to 44); of 29 November 2011, National Grid Indus (C‑371/10, EU:C:2011:785, paragraphs 50 to 64); of 1 December 2011, Commission v Hungary (C‑253/09, EU:C:2011:795, paragraphs 81 to 83); and of 21 November 2013, K (C‑322/11, EU:C:2013:716, paragraphs 74 to 82).

A particularly illustrative example of this is the double taxation of cross-border situations by two Member States, which under the settled case-law of the Court of Justice does not constitute a restriction on fundamental freedoms,  17 See, inter alia, judgments of 16 July 2009, Damseaux (C‑128/08, EU:C:2009:471, paragraph 34); of 15 April 2010, CIBA (C‑96/08, EU:C:2010:185, paragraph 28); of 10 February 2011, Haribo Lakritzen Hans Riegel and Österreichische Salinen (C‑436/08 and C‑437/08, EU:C:2011:61, paragraph 170); and of 21 November 2013, X (C‑302/12, EU:C:2013:756, paragraph 29). even though the negative effects for the internal market are obvious. However, such obstacles to the internal market that result from the autonomous actions of two Member States can be prevented not by fundamental freedoms but rather only by legal acts at the EU level  18 See, in particular, the judgments of 14 November 2006, Kerckhaert and Morres (C‑513/04, EU:C:2006:713, paragraph 22); of 6 December 2007, Columbus Container Services (C‑298/05, EU:C:2007:754, paragraph 45); of 12 February 2009, Block (C‑67/08, EU:C:2009:92, paragraph 30); and of 15 April 2010, CIBA (C‑96/08, EU:C:2010:185, paragraph 27). or, as currently the second-best solution, by bilateral or multilateral agreements between the Member States.  19 See, in particular, judgments of 28 February 2008, Deutsche Shell (C‑293/06, EU:C:2008:129, paragraphs 41 and 42), and of 23 October 2008, Krankenheim Ruhesitz am Wannsee-Seniorenheimstatt (C‑157/07, EU:C:2008:588, paragraphs 48 and 49).

In the present case, a conditio sine qua non of the adverse treatment of Damixa’s cross-border establishment is the fact that the foreign German tax law to which its subsidiary is subject prohibits the deduction of interest expenses. Absent this rule, which is attributable to another Member State, cross-border and domestic situations would be treated equally. In the absence of the foreign prohibition on deduction of interest expenses, Damixa would be treated like a parent company whose domestic subsidiary is not subject to such a prohibition. Both parent companies could not benefit from a tax exemption for their interest income.

On the other hand, if it were to be assumed in the present case that the Danish rule constitutes a restriction on the freedom of establishment, then, subject to justification of this restriction, the Kingdom of Denmark would make a tax exemption for cross-border situations depending on whether another Member State prohibits its taxpayers from deducting interest expenses. This would clearly be in conflict with the case-law on the autonomy principle.

The Manninen judgment  20 Judgment of 7 September 2004, Manninen (C‑319/02, EU:C:2004:484). is also consistent with the autonomy principle. The parties intensively discussed its importance for the purpose of answering the question referred, even though the judgment was delivered in 2004, which was prior to the development of the autonomy principle in our case-law.

In the Manninen judgment, the Court of Justice determined that there had been a restriction on the free of movement of capital in connection with the taxation of dividend income received by domestic shareholders. The national tax law essentially provided that shareholders were to receive a tax credit in the amount of the corporation tax on distributed profits already paid by the company in which they held shares. However, shareholders of foreign companies were excluded from this measure, which was designed to prevent the double taxation of company profits. It was not possible to set off the corporation tax that foreign companies had paid in another Member State. The Court of Justice held that this constituted a restriction on cross-border investments, for which it also could find no justification.

Applying this to the present case, the argument could be made that the higher taxation of a subsidiary due to a prohibition on the deduction of interest expenses is also a tax, which is ‘set off’ by the domestic shareholder, that is to say, the parent company, because the interest income it receives is not taxed. Under this comparison, a restriction on the freedom of establishment would have to be presumed in the present case, just as in the Manninen judgment, since it is not possible to ‘set off’ foreign investments. This would call into question the validity of the autonomy principle.

However, it should be emphasised that in the grounds of its judgment, the Court of Justice expressly understood the contested national rule to mean that setting off the company’s corporation tax against its shareholder’s income tax would have the end result that the dividend income received by the shareholder was exempt from taxation.  21 Judgment of 7 September 2004, Manninen (C‑319/02, EU:C:2004:484, paragraphs 20 and 44). The Member State concerned was thus solely responsible for the adverse treatment of foreign investments, for which there was ultimately no provision for a tax exemption for dividend income. When interpreted in this way, the Manninen judgment differs significantly from the present case. The Danish tax exemption for parent companies does not apply across the board but rather only where their subsidiaries are subject to a prohibition on the deduction of interest expenses. But in the case of non-resident subsidiaries, this depends on the tax law of another Member State.

However, this reading of the Manninen judgment might conflict with the fact that the Court of Justice does not consider the Member State concerned to be obligated to entirely exempt from taxation the dividends received by the shareholder of a non-resident company. Rather, in accordance with settled case-law, only the corporation tax actually paid in the Member State where the company is established is to be set off against the shareholder’s tax.  22 Judgment of 7 September 2004, Manninen (C‑319/02, EU:C:2004:484, paragraph 54). See also, inter alia, judgments of 12 December 2006, Test Claimants in the FII Group Litigation (C‑446/04, EU:C:2006:774, paragraph 70); of 6 March 2007, Meilicke and Others (C‑292/04, EU:C:2007:132, paragraph 15); of 10 February 2011, Haribo Lakritzen Hans Riegel and Österreichische Salinen (C‑436/08 and C‑437/08, EU:C:2011:61, paragraph 61); and of 30 June 2011, Meilicke and Others (C‑262/09, EU:C:2011:438). This could thus be seen as being in conflict with the autonomy principle, since the amount of such set-off depends on the amount of the foreign tax and thus on the tax law of another Member State.

However, the supposed conflict resolves itself when one realises that the Court of Justice accommodated the Member State in this way only with regard to the choice of the method for eliminating the ascertained restriction. The Member State concerned need not provide an exemption for foreign investments in order to prevent a restriction on the free movement of capital. Rather, it suffices if it merely sets off the specific foreign corporation tax.  23 Judgment of 7 September 2004, Manninen (C‑319/02, EU:C:2004:484, paragraph 46). On the contrary, under the Manninen line of case-law, the setting off of foreign taxes as such — and thus the dependence on the tax regime or another Member State — is not prescribed by fundamental freedoms. This is particularly evident from the fact that, in a cross-border case, the shareholder must be exonerated at most from paying the tax on his dividend income but has no right to repayment of an amount of foreign corporation tax in excess thereof.  24 Judgment of 12 December 2006, Test Claimants in the FII Group Litigation (C‑446/04, EU:C:2006:774, paragraph 52).

A rule such as the Danish one, under which the tax exemption for interest income is dependent on a prohibition of the deduction of interest expenses, thus does not constitute a restriction on the freedom of establishment and accordingly does not breach Articles 43 EC and 48 EC.

To be considered here first is preservation of the allocation between the Member States of the power to impose taxes, which is a ground of justification recognised by the Court of Justice in settled case-law.  25 See, inter alia, judgments of 13 December 2005, Marks & Spencer (C‑446/03, EU:C:2005:763, paragraph 45); of 29 November 2011, National Grid Indus (C‑371/10, EU:C:2011:785, paragraph 45); and of 6 October 2015, Finanzamt Linz (C‑66/14, EU:C:2015:661, paragraph 41). Member States accordingly have the right to exercise and protect the power assigned to them to impose taxes.  26 See, in particular, my Opinion in Nordea Bank Danmark (C‑48/13, EU:C:2014:153, points 38 to 41 and the case-law cited there). Measures adopted on this basis go beyond the mere interest of a Member State in preventing a reduction of its tax revenue — which as such is not a matter of overriding general interest  27 See, inter alia, judgments of 16 July 1998, ICI (C‑264/96, EU:C:1998:370, paragraph 28); of 7 September 2004, Manninen (C‑319/02, EU:C:2004:484, paragraph 49); and of 16 June 2011, Commission v Austria (C‑10/10, EU:C:2011:399, paragraph 40).  — because they are aimed at preventing an unwarranted shifting of the tax base from one Member State to another.

The present case features the particularity that the power to impose taxes was not defined by the Member States by an agreement or unilaterally,  28 See, inter alia, judgments of 18 June 2009, Aberdeen Property Fininvest Alpha (C‑303/07, EU:C:2009:377, paragraph 25); of 29 November 2011, National Grid Indus (C‑371/10, EU:C:2011:785, paragraph 45); and of 6 October 2015, Finanzamt Linz (C‑66/14, EU:C:2015:661, paragraph 41). as is customarily the case, but instead by a legal act of the European Union. This is because the interest that Damixa received from its German subsidiary ostensibly comes within the scope of Directive 2003/49/EC.  29 Council Directive 2003/49/EC of 3 June 2003 on a common system of taxation applicable to interest and royalty payments made between associated companies of different Member States (OJ 2003 L 157, p. 49). Article 1(1) and (2) of this directive assigns the right to tax such interest to the Member State of the party entitled to receive it by exempting the interest from taxation in the source State.

Although, pursuant to Article 4(1)(a) of Directive 2003/49, the source State is not prevented from taxing interest payments by way of exception as distributions of profits, as can be the case with the aid of a prohibition on the deduction of interest expenses, and although the taxation of the subsidiary directly affected by the prohibition on the deduction of interest is not covered by Article 1(1),  30 See judgment of 21 July 2011, Scheuten Solar Technology (C‑397/09, EU:C:2011:499, paragraphs 30 and 31). the directive clearly states that the power to tax cross-border interest payments is to rest with the Member State of the party entitled to receive them.  31 See also the fourth recital of Directive 2003/49.

However, the power of the Kingdom of Denmark to impose taxes in the present case would not be preserved if a source State, such as the Federal Republic of Germany, were to tax the interest payment by means of a prohibition on the deduction of interest expenses, forcing Denmark to relinquish its power to impose taxes by also having to provide for a tax exemption in such cases. The tax-related legal acts of the European Union, like Directive 2003/49, are of course subject to the constraints of fundamental freedoms,  32 In this sense, regarding Council Directive 90/435/EEC of 23 July 1990 on the common system of taxation applicable in the case of parent companies and subsidiaries of different Member States (OJ 1990 L 225, p. 6), see the judgment of 2 September 2015, Groupe Steria (EU:C:2015:524, paragraph 39 and the case-law cited there). but if the justification for an interference with fundamental freedoms in tax law has to be in line with the allocation of the power to impose taxes by the Member States,  33 See, in particular, my Opinion in the Nordea Bank Danmark (C‑48/13, EU:C:2014:153, points 35 to 37 and the case-law cited there). then this must a fortiori be applicable to an allocation at the level of the European Union.

Since it appears that restricting the tax exemption in the present case to interest payments made by domestic subsidiaries is the most moderate means of preventing a shifting of the power to impose taxes to the source State contrary to the allocation specified by Directive 2003/49, this measure is justified in preserving the allocation between the Member States to impose taxes.

In addition, the exclusion of non-resident subsidiaries from the tax exemption could also be justified on the ground of preserving fiscal coherence.  34 See, inter alia, the judgments of 28 January 1992, Bachmann (C‑204/90, EU:C:1992:35, paragraph 28); of 7 September 2004, Manninen (C‑319/02, EU:C:2004:484, paragraph 42); of 27 November 2008, Papillon (C‑418/07, EU:C:2008:659, paragraph 43); of 12 June 2014, SCA Group Holding and Others (C‑39/13 to C‑41/13, EU:C:2014:1758, paragraph 33); and of 17 December 2015, Timac Agro Deutschland (C‑388/14, EU:C:2015:829, paragraph 39).

For this purpose, a direct link is required between the tax advantage and the offsetting of that advantage by a particular tax levy.  35 See, in particular, judgments of 14 November 1995, Svensson and Gustavsson (C‑484/93, EU:C:1995:379, paragraph 18); of 16 July 1998, ICI (C‑264/96, EU:C:1998:370, paragraph 29); of 29 March 2007, Rewe Zentralfinanz (C‑347/04, EU:C:2007:194, paragraph 62); of 13 November 2012, Test Claimants in the FII Group Litigation (C‑35/11, EU:C:2012:707, paragraph 58); and of 17 December 2015, Timac Agro Deutschland (C‑388/14, EU:C:2015:829, paragraph 39). The direct nature of the link between the advantage and the levy must be examined in the light of the objective pursued by the tax scheme in question.  36 See, in particular, judgments of 28 February 2008, Deutsche Shell (C‑293/06, EU:C:2008:129, paragraph 39); of 17 November 2009, Presidente del Consiglio dei Ministri (C‑169/08, EU:C:2009:709, paragraph 47); and of 17 December 2015, Timac Agro Deutschland (C‑388/14, EU:C:2015:829, paragraph 39). Similarly, see judgment of 17 September 2004, Manninen (C‑319/02, EU:C:2004:484, paragraph 43). If those requirements are met, a taxpayer may be denied the tax advantage in the event that he is not subject to the levy that the tax system of a Member State inextricably links with the tax advantage being sought.

In the present case, such a direct link exists between the Danish tax exemption for interest income received by the parent company and the Danish prohibition on deduction of interest expenses by the subsidiary. Damixa thus seeks the advantage of tax exemption for its interest income without its subsidiary being subject to the directly associated levy in the form of the Danish prohibition on deduction of interest expenses.

This conclusion is not invalidated by the fact that the Court of Justice has variously held that there is no direct link in the sense of fiscal coherence where, inter alia, different taxpayers are affected.  37 See, in particular, judgment of 17 September 2015, F.E. Familienprivatstiftung Eisenstadt (C‑589/13, EU:C:2015:612, paragraph 83 and the case-law cited there). For, as I have already stated in greater detail elsewhere,  38 See my Opinion in Manninen (C‑319/02, EU:C:2004:164, points 50 to 65). a direct link can exceptionally exist in such cases if, as in the present case, an identical economic transaction has inverse consequences for two taxpayers. In particular, in the Papillon judgment, the Court of Justice implicitly acknowledged this view and found it to be relevant in that case. It held that a direct link existed between the advantage associated with consolidating the results of all group companies and the tax burden that came from neutralising certain transactions.  39 Judgment of 27 November 2008, Papillon (C‑418/07, EU:C:2008:659, paragraphs 45 to 50). This concerned both advantages and disadvantages for each of the companies within a group.

In addition, in accordance with the most recent case-law, the exclusion of a tax exemption in the case of non-resident subsidiaries that are subject to a foreign prohibition on the deduction of interest expenses is also proportionate. In this regard, the Court of Justice has held that taking into account foreign circumstances that are not subject to a Member State’s taxation would be contrary to the objective of a rule that, as is also the case here, seeks to avoid double taxation in the Member State’s tax system.  40 Judgment of 1 December 2011, Commission v Hungary (C‑253/09, EU:C:2011:795, paragraphs 81 and 82).

Thus, the aspect of preserving fiscal coherence would also justify restricting the tax exemption at issue to interest income received from domestic subsidiaries.