# C_2016106EN.01002402.xml

| 21.3.2016 | EN | Official Journal of the European Union | C 106/24 |
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21.3.2016

EN

Official Journal of the European Union

C 106/24

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Request for a preliminary ruling from the Conseil d’État (France) lodged on 6 January 2016 — Holcim France SAS, successor in law to Euro Stockage v Ministre des finances et des comptes publics

(Case C-6/16)

(2016/C 106/26)

Language of the case: French

Referring court

Referring court

Conseil d’État

Parties to the main proceedings

Parties to the main proceedings

Appellants: Holcim France SAS, successor in law to Euro Stockage, Enka SA

Appellants:

Respondent: Ministre des finances et des comptes publics

Respondent:

Questions referred

Questions referred

| 1. | If the national legislation of a Member State uses in domestic law the option offered by Article 1(2) of Directive 90/435/EEC of 23 July 1990, (1) is there scope for review of the measures or agreements adopted in order to give effect to that option under EU primary law? |
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1.

If the national legislation of a Member State uses in domestic law the option offered by Article 1(2) of Directive 90/435/EEC of 23 July 1990, (1) is there scope for review of the measures or agreements adopted in order to give effect to that option under EU primary law?

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| 2. | Must the provisions of Article 1(2) of that Directive, which confer upon Member States broad discretion to determine which provisions are ‘required for the prevention of fraud or abuse’, be interpreted as precluding a Member State from adopting a mechanism aimed at excluding from the benefit of the exemption the dividends distributed to a legal person controlled directly or indirectly by one or more residents of States that are not members of the Union, unless that legal person provides proof that the principal purpose or one of the principal purposes of the chain of interests is not to benefit from the exemption? |
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2.

Must the provisions of Article 1(2) of that Directive, which confer upon Member States broad discretion to determine which provisions are ‘required for the prevention of fraud or abuse’, be interpreted as precluding a Member State from adopting a mechanism aimed at excluding from the benefit of the exemption the dividends distributed to a legal person controlled directly or indirectly by one or more residents of States that are not members of the Union, unless that legal person provides proof that the principal purpose or one of the principal purposes of the chain of interests is not to benefit from the exemption?

required for the prevention of fraud or abuse

| 3. | (a) | If the compatibility with EU law of the ‘anti-abuse’ mechanism mentioned above should have to be assessed having regard to the provisions of the Treaty too, must it be examined, having regard to the purpose of the legislation at issue, in the light of the provisions of Article 43 of the Treaty establishing the European Community, now Article 49 of the Treaty on the Functioning of the European Union, even though the company receiving the dividend distribution is controlled directly or indirectly, as a result of a chain of interests which has among its principal purposes the benefit of the exemption, by one or more residents of third States that may not avail themselves of freedom of establishment? |
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3.

(a)

If the compatibility with EU law of the ‘anti-abuse’ mechanism mentioned above should have to be assessed having regard to the provisions of the Treaty too, must it be examined, having regard to the purpose of the legislation at issue, in the light of the provisions of Article 43 of the Treaty establishing the European Community, now Article 49 of the Treaty on the Functioning of the European Union, even though the company receiving the dividend distribution is controlled directly or indirectly, as a result of a chain of interests which has among its principal purposes the benefit of the exemption, by one or more residents of third States that may not avail themselves of freedom of establishment?

| (b) | If the answer to the preceding question is not affirmative, must that compatibility be examined in the light of the provisions of Article 56 of the Treaty establishing the European Community, now Article 63 of the Treaty on the Functioning of the European Union? |
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(b)

If the answer to the preceding question is not affirmative, must that compatibility be examined in the light of the provisions of Article 56 of the Treaty establishing the European Community, now Article 63 of the Treaty on the Functioning of the European Union?

| 4. | Must the provisions cited above be interpreted as precluding national legislation from excluding from the exemption from withholding tax the dividends paid by a company in one Member State to a company established in another Member State, if those dividends are received by a legal person controlled directly or indirectly by one or more residents of States that are not members of the European Union, unless that legal person establishes that the principal purpose or one of the principal purposes of that chain of interests is not to benefit from the exemption? |
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4.

Must the provisions cited above be interpreted as precluding national legislation from excluding from the exemption from withholding tax the dividends paid by a company in one Member State to a company established in another Member State, if those dividends are received by a legal person controlled directly or indirectly by one or more residents of States that are not members of the European Union, unless that legal person establishes that the principal purpose or one of the principal purposes of that chain of interests is not to benefit from the exemption?

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(1)  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).

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