# C_2011319EN.01000202.xml

| 29.10.2011 | EN | Official Journal of the European Union | C 319/2 |
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29.10.2011

EN

Official Journal of the European Union

C 319/2

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Judgment of the Court (First Chamber) of 15 September 2011 (reference for a preliminary ruling from the Conseil d’État (France)) — Ministre du Budget, des Comptes publics et de la Fonction publique v Accor SA

(Case C-310/09) (1)

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(Free movement of capital - Tax treatment of dividends - National rules conferring a tax credit in respect of dividends distributed by resident subsidiaries of parent companies - Refusal to grant a tax credit in respect of dividends distributed by non-resident subsidiaries - Redistribution of dividends by the parent company to its shareholders - Setting off the tax credit against the advance payment payable by the parent company at the time of redistribution - Refusal to reimburse the advance payment made by the parent company - Unjust enrichment - Evidence required regarding the taxation of non-resident subsidiaries)

2011/C 319/03

Language of the case: French

Referring court

Referring court

Conseil d’État

Parties to the main proceedings

Parties to the main proceedings

Applicant: Ministre du Budget, des Comptes publics et de la Fonction publique

Applicant:

Defendant: Accor SA

Defendant:

Re:

Re:

Reference for a preliminary ruling — Conseil d’État — Interpretation of Articles 43 and 56 of the EC Treaty — National rules whereby dividends originating from subsidiaries established in the State of residence of the parent company are taxed in a different way from dividends originating from subsidiaries established in other Member States — Option of off-setting against the advance payment for which a parent company is liable when it redistributes such dividends to shareholders the tax credit applied to the distribution of those dividends if they come from a subsidiary established in France but not if they come from a subsidiary established in another Member State of the Community — Refusal to reimburse the advance payment made by the parent company, on grounds of unjust enrichment or absence of adverse effects on that company — Reimbursement of sums paid by the parent company conditional upon the production of evidence regarding the tax paid by its subsidiaries in a Member State other than that in which the parent company has its registered office — Compliance with the principles of equivalence and effectiveness

Operative part of the judgment

Operative part of the judgment

| 1. | Articles 49 TFEU and 63 TFEU preclude legislation of a Member State intended to eliminate economic double taxation of dividends, such as that at issue in the main proceedings, which allows a parent company to set off against the advance payment, for which it is liable when it redistributes to its shareholders dividends paid by its subsidiaries, the tax credit applied to the distribution of those dividends if they originate from a subsidiary established in that Member State, but does not offer that option if those dividends originate from a subsidiary established in another Member State, since, in that case, that legislation does not give entitlement to a tax credit applied to the distribution of those dividends by that subsidiary. |
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1.

Articles 49 TFEU and 63 TFEU preclude legislation of a Member State intended to eliminate economic double taxation of dividends, such as that at issue in the main proceedings, which allows a parent company to set off against the advance payment, for which it is liable when it redistributes to its shareholders dividends paid by its subsidiaries, the tax credit applied to the distribution of those dividends if they originate from a subsidiary established in that Member State, but does not offer that option if those dividends originate from a subsidiary established in another Member State, since, in that case, that legislation does not give entitlement to a tax credit applied to the distribution of those dividends by that subsidiary.

| 2. | Where a national tax regime such as that at issue in the main proceedings does not of itself lead to the passing on to a third party of the tax unduly paid by the person liable for that tax, EU law precludes a Member State refusing to reimburse sums paid by the parent company on the grounds either that such reimbursement would lead to the unjust enrichment of the parent company, or that the sum paid by the parent company does not constitute an accounting or tax charge for it but is set off against the total of the sums which may be redistributed to its shareholders. |
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2.

Where a national tax regime such as that at issue in the main proceedings does not of itself lead to the passing on to a third party of the tax unduly paid by the person liable for that tax, EU law precludes a Member State refusing to reimburse sums paid by the parent company on the grounds either that such reimbursement would lead to the unjust enrichment of the parent company, or that the sum paid by the parent company does not constitute an accounting or tax charge for it but is set off against the total of the sums which may be redistributed to its shareholders.

| 3. | The principles of equivalence and effectiveness do not preclude the reimbursement to a parent company of sums which ensure the application of the same tax regime to dividends distributed by its subsidiaries established in France and those distributed by the subsidiaries of that company established in other Member States, and subsequently redistributed by that parent company, being subject to the condition that the person liable for the tax furnish evidence which is in its sole possession and relating, with respect to each dividend concerned, in particular to the rate of taxation actually applied and the amount of tax actually paid on profits made by subsidiaries established in other Member States, whereas, with respect to subsidiaries established in France, that evidence, known to the administration, is not required. Production of that evidence may however be required only if it does not prove virtually impossible or excessively difficult to furnish evidence of payment of the tax by the subsidiaries established in the other Member States, in the light in particular of the provisions of the legislation of those Member States concerning the avoidance of double taxation, the recording of the corporation tax which must be paid and the retention of administrative documents. It is for the national court to determine whether those conditions are met in the case before the national court. |
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3.

The principles of equivalence and effectiveness do not preclude the reimbursement to a parent company of sums which ensure the application of the same tax regime to dividends distributed by its subsidiaries established in France and those distributed by the subsidiaries of that company established in other Member States, and subsequently redistributed by that parent company, being subject to the condition that the person liable for the tax furnish evidence which is in its sole possession and relating, with respect to each dividend concerned, in particular to the rate of taxation actually applied and the amount of tax actually paid on profits made by subsidiaries established in other Member States, whereas, with respect to subsidiaries established in France, that evidence, known to the administration, is not required. Production of that evidence may however be required only if it does not prove virtually impossible or excessively difficult to furnish evidence of payment of the tax by the subsidiaries established in the other Member States, in the light in particular of the provisions of the legislation of those Member States concerning the avoidance of double taxation, the recording of the corporation tax which must be paid and the retention of administrative documents. It is for the national court to determine whether those conditions are met in the case before the national court.

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(1)  OJ C 233, 26.9.2009.

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