35According to the case-law of the Court, such a difference in the tax treatment of taxpayers based on the place where the companies with which an agreement on non-arm’s-length terms have been made have their registered office is liable to constitute a restriction of freedom of establishment, within the meaning of Article 43 EC. The taxpayer might thereby be deterred from acquiring, creating or maintaining a subsidiary in a Member State other than its Member State of residence or from acquiring or maintaining a substantial holding in a company established in that other Member State because of the tax burden imposed, in a cross-border situation, on the agreement entered into on non-arm’s-length terms (see, to that effect, judgment of 21 January 2010, SGI, C‑311/08, EU:C:2010:26, paragraph 44).
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