In November 27, 2008, the European Commission requested Portugal to change its tax provisions concerning the exit of companies from its territory, granting a two months period for such change. Portuguese Law remains unchanged and the European Commission presented a claim against Portugal on the European Court of Justice based on the incompatibilities of the Portuguese Law with the freedom of establishment.

In fact, according to Portuguese tax provisions, in case of the transfer of seat and place of effective management of a Portuguese company to another Member State (MS) or in case a permanent establishment ceases its activities in Portugal or transfers its Portuguese located assets to another MS:

• the taxable base of that financial year will include any unrealised capital gains in respect of the company's assets whereas unrealised capital gains from purely domestic transactions are not included in the taxable base;
• the shareholders of the company that transfers its seat and place of effective management abroad are subject to tax on the difference between the company's net assets (valued at the time of the transfer at market prices) and the acquisition cost of their participation.

European Commission’s position is based on the judgments of 11 March 2004, in Case C-9/02, De Lasteyrie du Saillant, and 7 September 2006 in Case-470/04, N, as well as on its Communication (COM(2006)825) on exit taxation.