# C_2012098EN.01001901.xml

| 31.3.2012 | EN | Official Journal of the European Union | C 98/19 |
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31.3.2012

EN

Official Journal of the European Union

C 98/19

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Reference for a preliminary ruling from the Finanzgericht Köln (Germany) lodged on 31 January 2012 — Kronos International Inc. v Finanzamt Leverkusen

(Case C-47/12)

2012/C 98/31

Language of the case: German

Referring court

Referring court

Finanzgericht Köln

Parties to the main proceedings

Parties to the main proceedings

Applicant: Kronos International Inc., Leverkusen

Applicant:

Defendant: Finanzamt Leverkusen

Defendant:

Questions referred

Questions referred

| 1. | Is the exclusion of the set-off of corporation tax as a consequence of the tax exemption of dividend distributions by capital companies in third countries to German capital companies, for which the German legislation only requires the capital company receiving the dividends to have a holding of not less than 10 % in the distributing company, subject only to the freedom of establishment within the meaning of Article 49 in conjunction with Article 54 TFEU or also to the free movement of capital within the meaning of Articles 63 to 65 TFEU, if the actual holding of the capital company receiving the dividends is 100 %? |
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1.

Is the exclusion of the set-off of corporation tax as a consequence of the tax exemption of dividend distributions by capital companies in third countries to German capital companies, for which the German legislation only requires the capital company receiving the dividends to have a holding of not less than 10 % in the distributing company, subject only to the freedom of establishment within the meaning of Article 49 in conjunction with Article 54 TFEU or also to the free movement of capital within the meaning of Articles 63 to 65 TFEU, if the actual holding of the capital company receiving the dividends is 100 %?

| 2. | Are the provisions concerning the freedom of establishment (now Article 49 TFEU) and, as the case may be, also concerning the free movement of capital (Article 67 EEC/EC until 1993, now Articles 63 to 65 TFEU) to be interpreted as meaning that they preclude a provision which, where the dividends of foreign subsidiary companies are exempt from tax, excludes the set-off and payment of corporation tax on those dividend distributions even where the parent company makes a loss, if, for distributions by German subsidiary companies, there is provision for relief by setting off corporation tax? |
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2.

Are the provisions concerning the freedom of establishment (now Article 49 TFEU) and, as the case may be, also concerning the free movement of capital (Article 67 EEC/EC until 1993, now Articles 63 to 65 TFEU) to be interpreted as meaning that they preclude a provision which, where the dividends of foreign subsidiary companies are exempt from tax, excludes the set-off and payment of corporation tax on those dividend distributions even where the parent company makes a loss, if, for distributions by German subsidiary companies, there is provision for relief by setting off corporation tax?

| 3. | Are the provisions concerning the freedom of establishment (now Article 49 TFEU) and, as the case may be, also concerning the free movement of capital (Article 67 EEC/EC until 1993, now Articles 63 to 65 TFEU) to be interpreted as meaning that they preclude a provision which excludes the set-off and payment of corporation tax on dividends of second and third-tier subsidiaries which are exempted from tax in the country of the subsidiary and which are (re)distributed to the German parent company and likewise exempted from tax in Germany, but in the case of purely domestic situations, as the case may be by means of the set-off of corporation tax on the second-tier subsidiary’s dividends in the hands of the subsidiary company and the set-off of corporation tax on the subsidiary’s dividends in the hands of the parent company, enables repayment in the event of a loss by the parent company? |
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3.

Are the provisions concerning the freedom of establishment (now Article 49 TFEU) and, as the case may be, also concerning the free movement of capital (Article 67 EEC/EC until 1993, now Articles 63 to 65 TFEU) to be interpreted as meaning that they preclude a provision which excludes the set-off and payment of corporation tax on dividends of second and third-tier subsidiaries which are exempted from tax in the country of the subsidiary and which are (re)distributed to the German parent company and likewise exempted from tax in Germany, but in the case of purely domestic situations, as the case may be by means of the set-off of corporation tax on the second-tier subsidiary’s dividends in the hands of the subsidiary company and the set-off of corporation tax on the subsidiary’s dividends in the hands of the parent company, enables repayment in the event of a loss by the parent company?

| 4. | If the provisions on the free movement of capital are also applicable, a further question, depending on the reply to question 2, arises with regard to the Canadian dividends:
  Is the present Article 64(1) TFEU to be understood as meaning that it permits the application by the Federal Republic of Germany of German legislation and DTC provisions which have remained unchanged in substance since 31 December 1993 and, therefore, that it permits the continuing exclusion of the offsetting of Canadian corporation tax on dividends exempted from tax in Germany? |
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4.

If the provisions on the free movement of capital are also applicable, a further question, depending on the reply to question 2, arises with regard to the Canadian dividends:

Is the present Article 64(1) TFEU to be understood as meaning that it permits the application by the Federal Republic of Germany of German legislation and DTC provisions which have remained unchanged in substance since 31 December 1993 and, therefore, that it permits the continuing exclusion of the offsetting of Canadian corporation tax on dividends exempted from tax in Germany?

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