Opinion of the Advocate General — ECLI:EU:C:2009:399
Date: 2009-06-25
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Right of establishment;Taxation;Free movement of capital;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the Judgment 1. Approximation of laws – Common system of taxation applicable in the case of parent companies and subsidiaries of different Member States – Directive 90/435 (Council Directives 90/435, Art. 2(a) and Annex I(f), and 2003/123) 2. Approximation of laws – Common system of taxation applicable in the case of parent companies and subsidiaries of different Member States – Directive 90/435 (Art. 43 EC and 56 EC; Council Directive 90/435, Art. 2(a), 5(1) and Annex I(f)) 1. Article 2(a) of Directive 90/435 on the common system of taxation applicable in the case of parent companies and subsidiaries of different Member States, read in conjunction with point (f) of the annex to that directive, must be interpreted as meaning that a company under French law in the form of a ‘société par actions simplifiée’ cannot be considered to be a ‘company of a Member State’ within the meaning of that directive before that directive was amended by Directive 2003/123. In accordance with Article 2(a) of Directive 90/435, ‘company of a Member State’ means any company which takes one of the forms listed in the annex to that directive. The technique used in the majority of the points of the annex to that directive, in particular, in point (f) in relation to companies under French law, whereby the legal forms covered by that directive are listed without a clause enabling its application to other companies constituted in accordance with the law of the respective Member States (with the exception, as regards French law, of public establishments and undertakings), implies that those legal forms are listed exhaustively. In addition, Directive 90/435 does not seek to introduce a common system for all companies of the Member States or for all holdings. For holdings which do not fall within the scope of that directive, it is for the Member States to determine whether, and to what extent, economic double taxation of dividends is to be avoided and, for that purpose, to establish, either unilaterally or through conventions concluded with other Member States, procedures intended to prevent or mitigate such economic double taxation. (see paras 30, 32, 36-37, 44, operative part 1) 2. There is no factor of such a kind as to affect the validity of Article 2(a) of Directive 90/435 on the common system of taxation applicable in the case of parent companies and subsidiaries of different Member States, read in conjunction with point (f) of the annex thereto, and Article 5(1) of that directive, in the light of the principles of the freedom of establishment and the free movement of capital. Although the obligation to exempt from all withholding tax laid down in Article 5(1) of that directive is placed on the Member States only as regards profit distributions accruing to companies which may be regarded as such within the meaning of that directive, the latter does not authorise a Member State to treat profits distributed to companies in other Member States which do not fall within the scope of the directive less favourably than profits distributed to comparable companies established in its territory. Consequently, a restriction of the scope of Directive 90/435 which excludes from the outset other companies which may be created under national law, as is the case with Article 2(a) of Directive 90/435 and point (f) of the annex thereto, is not apt to create a restriction on the freedom of establishment or on the free movement of capital. (see paras 59, 61-63, operative part 2)