# C_2007315EN.01000801.xml

| 22.12.2007 | EN | Official Journal of the European Union | C 315/8 |
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22.12.2007

EN

Official Journal of the European Union

C 315/8

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Judgment of the Court (First Chamber) of 8 November 2007 (reference for a preliminary ruling from the Gerechtshof te Amsterdam — Netherlands) — Amurta S.G.P.S v Inspecteur van de Belastingdienst

(Case C-379/05) (1)

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(Articles 56 EC to 58 EC - Free movement of capital - National tax legislation providing for exemption of shareholdings from corporation tax - Taxation of dividends - Withholding tax - Exemption from withholding tax - Application to companies receiving dividends with a seat or permanent establishment in the Member State granting the exemption and whose shareholdings benefit from exemption from corporation tax - Refusal to apply the exemption from withholding tax to dividends distributed to a recipient company not having a seat or a permanent establishment in that Member State)

(2007/C 315/12)

Language of the case: Dutch

Referring court

Gerechtshof te Amsterdam — Pays-Bas

Parties to the main proceedings

Applicant: Amurta S.G.P.S.

Applicant:

Defendant: Inspecteur van de Belastingdienst

Defendant:

Re:

Preliminary ruling — Gerechtshof te Amsterdam — Interpretation of Articles 56 EC, 57 EC and 58 EC — Corporation tax — Exemption from tax in the case of dividends paid by a company established in the national territory to a company also established in that territory — Refusal to grant that exemption in the case of dividends paid by a company established in the national territory to a company established in the territory of another Member State — Relevance of the existence, in that other Member State, of an equivalent exemption from taxation of dividends in favour of the company established in that State

Operative part of the judgment

| 1. | Articles 56 EC and 58 EC preclude legislation of a Member State which, where the minimum threshold for the parent company's shareholdings in the share capital of the subsidiary set out in Article 5(1) of 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 is not reached, provides for a withholding tax on dividends distributed by a company established in that Member State to a company established in another Member State, while exempting from that tax the dividends paid to a company liable to corporation tax in the first Member State or which has a permanent establishment in that Member State which owns the shares in the company making the distribution. |
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1.

Articles 56 EC and 58 EC preclude legislation of a Member State which, where the minimum threshold for the parent company's shareholdings in the share capital of the subsidiary set out in Article 5(1) of 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 is not reached, provides for a withholding tax on dividends distributed by a company established in that Member State to a company established in another Member State, while exempting from that tax the dividends paid to a company liable to corporation tax in the first Member State or which has a permanent establishment in that Member State which owns the shares in the company making the distribution.

| 2. | A Member State may not rely on the existence of a full tax credit granted unilaterally by another Member State to a recipient company established in the latter Member State in order to escape the obligation to prevent economic double taxation of dividends resulting from the exercise of its power to tax in a situation where the first Member State prevents economic double taxation of dividends distributed to companies established in its territory. Where a Member State relies on a convention for the avoidance of double taxation concluded with another Member State, it is for the national court to establish whether account should be taken, in the main proceedings, of that convention, and, if so, to determine whether it enables the effects of the restriction on the free movement of capital to be neutralised. |
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2.

A Member State may not rely on the existence of a full tax credit granted unilaterally by another Member State to a recipient company established in the latter Member State in order to escape the obligation to prevent economic double taxation of dividends resulting from the exercise of its power to tax in a situation where the first Member State prevents economic double taxation of dividends distributed to companies established in its territory. Where a Member State relies on a convention for the avoidance of double taxation concluded with another Member State, it is for the national court to establish whether account should be taken, in the main proceedings, of that convention, and, if so, to determine whether it enables the effects of the restriction on the free movement of capital to be neutralised.

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(1)  OJ C 22, 28.1.2006.

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