# C_2008223EN.01002401.xml

| 30.8.2008 | EN | Official Journal of the European Union | C 223/24 |
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30.8.2008

EN

Official Journal of the European Union

C 223/24

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Reference for a preliminary ruling from the Finanzgericht Köln (Germany) lodged on 9 June 2008 — Gaz de France — Berliner Investissement SA v Bundeszentralamt für Steuern

(Case C-247/08)

(2008/C 223/37)

Language of the case: German

Referring court

Finanzgericht Köln

Parties to the main proceedings

Applicant: Gaz de France — Berliner Investissement SA

Applicant:

Defendant: Bundeszentralamt für Steuern

Defendant:

Questions referred

| 1. | Must Article 2(a) in conjunction with paragraph (f) of the Annex to 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 (1) be interpreted as meaning that for the purposes of the directive a French company taking the legal form of a ‘société par actions simplifiée’ may be regarded even for the years prior to 2005 as ‘company of a Member State’ with the result that in respect of a profit distribution effected by its Germany subsidiary in 1999 the former company is entitled to an exemption from withholding tax in accordance with Article 5(1) of Directive 90/435/EEC? |
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1.

Must Article 2(a) in conjunction with paragraph (f) of the Annex to 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 (1) be interpreted as meaning that for the purposes of the directive a French company taking the legal form of a ‘société par actions simplifiée’ may be regarded even for the years prior to 2005 as ‘company of a Member State’ with the result that in respect of a profit distribution effected by its Germany subsidiary in 1999 the former company is entitled to an exemption from withholding tax in accordance with Article 5(1) of Directive 90/435/EEC?

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| 2. | In the event that Question 1 is answered in the negative:
  Inasmuch as Article 2(a) in conjunction with paragraph (f) of the Annex to 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 together with Article 5(1) of the same directive in the event of a profit distribution by a German subsidiary establishes an exemption from withholding tax in favour of French parent companies taking the legal form of a ‘société anonyme’, ‘société en commandite par actions’ or ‘société à responsabilite limitee’ not, however, French parent companies taking the legal form of a ‘société par actions simplifiée’ do such provisions infringe Articles 43 EC and 48 EC or Article 56(1) EC and Article 58(1)(a) and (3) EC? |
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2.

In the event that Question 1 is answered in the negative:

Inasmuch as Article 2(a) in conjunction with paragraph (f) of the Annex to 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 together with Article 5(1) of the same directive in the event of a profit distribution by a German subsidiary establishes an exemption from withholding tax in favour of French parent companies taking the legal form of a ‘société anonyme’, ‘société en commandite par actions’ or ‘société à responsabilite limitee’ not, however, French parent companies taking the legal form of a ‘société par actions simplifiée’ do such provisions infringe Articles 43 EC and 48 EC or Article 56(1) EC and Article 58(1)(a) and (3) EC?

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(1)   OJ 1990 L 225, p. 6.

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