# C_2008022EN.01002901.xml

| 26.1.2008 | EN | Official Journal of the European Union | C 22/29 |
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26.1.2008

EN

Official Journal of the European Union

C 22/29

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Reference for a preliminary ruling from the De Rechtbank van Eerste Aanleg te Brugge (Belgium) lodged on 16 November 2007 — Beleggen, Risicokapitaal, Beheer NV v Belgische Staat

(Case C-499/07)

(2008/C 22/54)

Language of the case: Dutch

Referring court

Rechtbank van Eerste Aanleg te Brugge (Belgium)

Parties to the main proceedings

Applicant: Beleggen, Risicokapitaal, Beheer NV

Applicant:

Defendant: Belgische Staat

Defendant:

Questions referred

| 1. | Must 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), in particular Article 4(1) thereof, be construed as precluding a situation in which a Member State applies the exemption relating to distributed profits which are received by a company of that State from its subsidiary in another Member State, except when the subsidiary is liquidated, by first including in full the distributed profits in the taxable basis and then deducting 95 % of those profits from the taxable basis but limiting the deduction to the amount of profits made in the taxable period in which the distribution of profits took place (after certain statutorily defined deductions) (Article 205(2) WIB 1992 in conjunction with Article 77 KB/WIB 1992), with the result that, if the profits made in the relevant taxable period are smaller than the amount of the aforementioned distributed profits, this does not give rise to a transferable loss? |
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1.

Must 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), in particular Article 4(1) thereof, be construed as precluding a situation in which a Member State applies the exemption relating to distributed profits which are received by a company of that State from its subsidiary in another Member State, except when the subsidiary is liquidated, by first including in full the distributed profits in the taxable basis and then deducting 95 % of those profits from the taxable basis but limiting the deduction to the amount of profits made in the taxable period in which the distribution of profits took place (after certain statutorily defined deductions) (Article 205(2) WIB 1992 in conjunction with Article 77 KB/WIB 1992), with the result that, if the profits made in the relevant taxable period are smaller than the amount of the aforementioned distributed profits, this does not give rise to a transferable loss?

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| 2. | If so, must 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, in particular Article 4(1) thereof, then be construed as obliging this Member State to make the distribution of profits which a company of this Member State receives from its subsidiary of another Member State deductible in full from the amount of profits made in the taxable period and to make any resulting loss transferable to a later taxable period? |
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2.

If so, must 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, in particular Article 4(1) thereof, then be construed as obliging this Member State to make the distribution of profits which a company of this Member State receives from its subsidiary of another Member State deductible in full from the amount of profits made in the taxable period and to make any resulting loss transferable to a later taxable period?

| 3. | If the aforementioned Directive 90/435/EEC must be construed as meaning that the Belgian rule is contrary to Article 4(1) with regard to distributed profits received by the Belgian parent company from a subsidiary established in the EU, must it then be determined that the aforementioned provision of the Directive is also incompatible with the application of the Belgian rule to distributed profits received by a Belgian parent company from a Belgian subsidiary where, as in the present case, the Belgian legislature, in transposing the Directive into Belgian law, has chosen to apply the same treatment to purely internal situations and to those governed by the Directive and has therefore aligned the Belgian legislation with the Directive also for purely internal situations? |
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3.

If the aforementioned Directive 90/435/EEC must be construed as meaning that the Belgian rule is contrary to Article 4(1) with regard to distributed profits received by the Belgian parent company from a subsidiary established in the EU, must it then be determined that the aforementioned provision of the Directive is also incompatible with the application of the Belgian rule to distributed profits received by a Belgian parent company from a Belgian subsidiary where, as in the present case, the Belgian legislature, in transposing the Directive into Belgian law, has chosen to apply the same treatment to purely internal situations and to those governed by the Directive and has therefore aligned the Belgian legislation with the Directive also for purely internal situations?

| 4. | Does Article 43 EC preclude the application of a legislative rule of a Member State under which, for the purposes of assessment to corporation tax, the exemption of the distributed profits received during a taxable period by a company from its subsidiary established in another Member State is limited in the first Member State to the amount of the profit made in the taxable period during which the profits were distributed (after certain statutorily defined deductions), whereas a full exemption of the distributed profits would be possible if that company had set up a permanent establishment in that other Member State? |
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4.

Does Article 43 EC preclude the application of a legislative rule of a Member State under which, for the purposes of assessment to corporation tax, the exemption of the distributed profits received during a taxable period by a company from its subsidiary established in another Member State is limited in the first Member State to the amount of the profit made in the taxable period during which the profits were distributed (after certain statutorily defined deductions), whereas a full exemption of the distributed profits would be possible if that company had set up a permanent establishment in that other Member State?

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(1)  OJ L 225, p. 6.

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