# C_2015146EN.01001601.xml

| 4.5.2015 | EN | Official Journal of the European Union | C 146/16 |
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4.5.2015

EN

Official Journal of the European Union

C 146/16

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Request for a preliminary ruling from the Grondwettelijk Hof (Belgium) lodged on 13 February 2015 — X; other party: Ministerraad

(Case C-68/15)

(2015/C 146/24)

Language of the case: Dutch

Referring court

Referring court

Grondwettelijk Hof

Parties to the main proceedings

Parties to the main proceedings

Applicant: X

Applicant:

Defendant: Ministerraad

Defendant:

Questions referred

Questions referred

| 1. | Must Article 49 of the Treaty on the Functioning of the European Union be interpreted as precluding national rules under which:






  (a) | companies established in another Member State and having a Belgian permanent establishment are subject to a tax if they decide to distribute profits which are not included in the final taxable profits of the company, irrespective of whether profits have flowed from the Belgian permanent establishment to the main establishment, whereas companies established in another Member State and having a Belgian subsidiary are not subject to such a tax if they decide to distribute profits which are not included in the final taxable profits of the company, irrespective of whether or not the subsidiary has distributed a dividend; |
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1.

Must Article 49 of the Treaty on the Functioning of the European Union be interpreted as precluding national rules under which:

(a)

companies established in another Member State and having a Belgian permanent establishment are subject to a tax if they decide to distribute profits which are not included in the final taxable profits of the company, irrespective of whether profits have flowed from the Belgian permanent establishment to the main establishment, whereas companies established in another Member State and having a Belgian subsidiary are not subject to such a tax if they decide to distribute profits which are not included in the final taxable profits of the company, irrespective of whether or not the subsidiary has distributed a dividend;

| (b) | companies established in another Member State and having a Belgian permanent establishment are, if they retain the Belgian profits in full, subject to a tax if they decide to distribute profits which are not included in the final taxable profits of the company, whereas Belgian companies are not subject to such a tax if they retain their profits in full? |
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(b)

companies established in another Member State and having a Belgian permanent establishment are, if they retain the Belgian profits in full, subject to a tax if they decide to distribute profits which are not included in the final taxable profits of the company, whereas Belgian companies are not subject to such a tax if they retain their profits in full?

| 2. | Must Article 5(1) of Council Directive 2011/96/EU (1) of 30 November 2011 on the common system of taxation applicable in the case of parent companies and subsidiaries of different Member States be interpreted as meaning that there is withholding tax in the case where a provision of national law requires that a tax be imposed on a distribution of profits by a subsidiary to its parent company in that, in the same taxable period, dividends are distributed and the taxable profits are wholly or partly reduced by the deduction for risk capital and/or by tax losses carried forward, whereas under national law the profits would not be taxable if they remained with the subsidiary and were not distributed to the parent company? |
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2.

Must Article 5(1) of Council Directive 2011/96/EU (1) of 30 November 2011 on the common system of taxation applicable in the case of parent companies and subsidiaries of different Member States be interpreted as meaning that there is withholding tax in the case where a provision of national law requires that a tax be imposed on a distribution of profits by a subsidiary to its parent company in that, in the same taxable period, dividends are distributed and the taxable profits are wholly or partly reduced by the deduction for risk capital and/or by tax losses carried forward, whereas under national law the profits would not be taxable if they remained with the subsidiary and were not distributed to the parent company?

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| 3. | Must Article 4(3) of Directive 2011/96/EU be interpreted as precluding national legislation under which a tax is levied on the distribution of dividends if that legislation has the effect that, in the case where a company distributes a received dividend in a year subsequent to the year in which it received that dividend itself, it is taxed on a portion of the dividend which exceeds the threshold laid down in the aforementioned Article 4(3) of the Directive, whereas that is not the case if that company redistributes a dividend in the year in which it receives it? |
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3.

Must Article 4(3) of Directive 2011/96/EU be interpreted as precluding national legislation under which a tax is levied on the distribution of dividends if that legislation has the effect that, in the case where a company distributes a received dividend in a year subsequent to the year in which it received that dividend itself, it is taxed on a portion of the dividend which exceeds the threshold laid down in the aforementioned Article 4(3) of the Directive, whereas that is not the case if that company redistributes a dividend in the year in which it receives it?

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(1)  OJ 2011 L 345, p. 8.

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