Opinion of the Advocate General — ECLI:EU:C:1997:612
Date: 1997-12-16
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Right of establishment
Procedure: Reference for a preliminary ruling
Origin: United Kingdom

Summary of the Judgment 
1. Preliminary rulings —jurisdiction of the Court — Limits — Manifestly irrelevant questions 
(EC Treaty, Art. 177) 
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SUMMARY — CASE C-264/96 
2. Freedom of movement for persons — Freedom of establishment — Tax legislation — Corpo­
ration tax — Tax relief — National legislation making consortium relief available solely to 
companies which control, wholly or mainly, subsidiaries whose seat is in the national territory 
— Not permissible 
(EC Treaty, Arts 52, 56 and 58) 
3. Member States — Obligations — Situation outside the scope of Community Uw — Obliga­
tion on the national courts to interpret domestic Uw in a way conforming with Community 
Uw — No such obligation 
(EC Treaty, Art. 5) 
1. In the context of the preliminary ruling 
procedure under Article 177, it is solely 
for the national courts before which pro­
ceedings are pending, and which must 
assume responsibility for the judgment to 
be given, to determine in the light of the 
particular circumstances of each case both 
the need for a preliminary ruling to 
enable them to give judgment and the rel­
evance of the questions which they sub­
mit to the Court. A request for a prelimi­
nary ruling from a national court may be 
rejected only if it is manifest that the 
interpretation of Community law or the 
examination of the validity of a rule of 
Community law sought by that court 
bears no relation to the true facts or the 
subject-matter of the main proceedings. 
2. Article 52 of the Treaty precludes legisla­
tion of a Member State which, in the case 
of companies established in that State 
belonging to a consortium through which 
they control a holding company, by 
means of which they exercise their right 
to freedom of establishment in order to 
set up subsidiaries in other Member 
States, makes a particular form of tax 
relief subject to the requirement that the 
holding company's business consist 
wholly or mainly in the holding of shares 
in subsidiaries that are established in the 
Member State concerned. 
Such legislation, which makes a tax 
advantage in the form of consortium 
relief available solely to companies which 
control, wholly or mainly, subsidiaries 
whose seat is in the national territory, 
applies the test of the subsidiaries' seat to 
establish differential tax treatment of con­
sortium companies established in that 
Member State and is not justified in terms 
of a need to ensure the cohesion of the 
national tax system arising from the fact 
that the revenue lost through the granting 
of tax relief on losses incurred by resident 
subsidiaries cannot be offset by taxing the 
profits of non-resident subsidiaries, since 
there is no direct link between the con­
sortium relief granted for losses incurred 
by a resident subsidiary and the taxation 
of profits made by non-resident subsid­
iaries. 
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ICI ν COLMER (ΗΜΓΓ) 
3. When deciding an issue concerning a situ­
ation which lies outside the scope of 
Community law, the national court is not 
required, under Community law, either 
to interpret its legislation in a way con­
forming with Community law or to dis-
apply that legislation. Where a particular 
provision must be disapplied in a situa­
tion covered by Community law, but that 
same provision could remain applicable 
to a situation not so covered, it is for the 
competent body of the State concerned to 
remove that legal uncertainty in so far as 
it might affect rights deriving from Com­
munity rules. 
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