Opinion of the Advocate General — ECLI:EU:C:2018:145
Date: 2018-03-01
Language of the case: Danish
Based on: Treaty on the Functioning of the European Union (consolidated version 2008)
Subject matter: Right of establishment;Taxation;Free movement of capital;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Denmark

Request for a preliminary ruling from the Østre Landsret (Denmark) lodged on 25 February 2016 — Skatteministeriet v Y Denmark Aps (Case C-117/16) Language of the case: Danish Referring court Østre Landsret Parties to the main proceedings Applicant: Skatteministeriet Defendant: Y Denmark Aps Questions referred 1. Does a Member State’s reliance on Article 1(2) of the Directive 1 on the application of domestic provisions required for the prevention of fraud or abuse presuppose that the Member State in question has adopted a specific domestic provision implementing Article 1(2) of the Directive, or that national law contains general provisions or principles on fraud and abuse that can be interpreted in accordance with Article 1(2)? 1.1 If question 1 is answered in the affirmative, can Paragraph 2(1)(c) of the Law on corporation tax, which provides that ‘it is a precondition that taxation of the dividends be waived … under the provisions of Council Directive 90/435/EEC on the common system of taxation applicable in the case of parent companies and subsidiaries of different Member States’, then be deemed to be a specific domestic provision as referred to in Article 1(2) of the Directive? 2. Is a provision in a double taxation convention entered into between two Member States and drafted in accordance with OECD’s Model Tax Convention, under which taxation of distributed dividends is contingent on whether the dividends recipient is deemed to be the beneficial owner of the dividends, a conventional anti-abuse provision covered by Article 1(2) of the Directive? 2.1. If so, is the term ‘agreement’ in Article 1(2) of the Directive then to be construed as presupposing that the Member State may, under its domestic law, rely on the double taxation convention, to the detriment of the taxpayer? 3. Should the Court answer question 2 in the affirmative, is it then for the national courts to define what is included in the concept ‘beneficial owner’, or should the concept, in the application of Directive 90/435/EEC, be interpreted as meaning that a specifically EU law significance should be attached to the concept referred to the EU Court of Justice for a ruling? 4. Should the Court answer question 2 in the affirmative and the answer to question 3 is that it is not for the national courts to define what is included in the concept ‘beneficial owner’, is the concept then to be interpreted as meaning that in a company resident in a Member State which, in circumstances such as those of the present case, receives dividends from a subsidiary in another Member State, is the ‘beneficial owner’ of those dividends as that concept is to be interpreted under EU law? (a) Is the concept ‘beneficial owner’ to be interpreted in accordance with the corresponding concept in Article 1(1) of Directive 2003/49/EC (‘the Interest & Royalties Directive’), read in conjunction with Article 1(4) thereof? (b) Should the concept be interpreted solely in the light of the commentary on Article 10 of the OECD 1977 Model Tax Convention (paragraph 12), or can subsequent commentaries be incorporated into the interpretation, including the additions made in 2003 regarding ‘conduit companies’, and the additions made in 2014 regarding ‘contractual or legal obligations’? (c) What significance does it have for the assessment of the issue whether the dividends recipient must be deemed to be a ‘beneficial owner’ if the dividends recipient has had a contractual or legal obligation to pass the interest to another person? (d) What significance does it have for the assessment of the issue whether the dividends recipient must be deemed to be a ‘beneficial owner’ that the referring court, following an assessment of the facts of the case, concludes that the recipient — without having been contractually or legally bound to pass the interest received to another person — did not have the ‘full’ right to ‘use and enjoy’ the interest as referred to in the 2014 Commentaries on the 1977 Model Tax Convention? 5. If it is assumed in the case that there are ‘domestic provisions required for the prevention of fraud or abuse’, see Article 1(2) of Directive 90/435/EEC, that dividends have been distributed from a company (A) resident in a Member State to a parent company (B) in another Member State and from there passed to that company’s parent company (C), resident outside the EU/EEA, which in turn has distributed the funds to its parent company (D), also resident outside the EU/EEA, that no double taxation convention has been entered into between the first-mentioned State and the State where C is resident, that a double taxation convention has been entered into between the first-mentioned State and the State where D is resident, and that the first-mentioned State, under its legislation, would therefore not have had a claim to tax at source on dividends distributed from A to D, had D been the direct owner of A, is there abuse under the Directive so that B is not protected thereunder? 6. If a company resident in a Member State (parent company) is in fact deemed not to be exempt from tax at source pursuant to Article 1(2) of Directive 90/435/EEC concerning dividends received from a company resident in another Member State (subsidiary), does Article 43 EC, read in conjunction with Article 48 EC (and/or Article 56 EC), preclude legislation under which the latter Member State taxes the parent company resident in the other Member State on the dividends, then the Member State in question deems resident parent companies in otherwise similar circumstances to the exempt from tax on such dividends? 7. If a company resident in a Member State (parent company) is in fact deemed not to be exempt from tax at source pursuant to Article 1(2) of Directive 90/435/EEC concerning dividends received from a company resident in another Member State (subsidiary), and the parent company in the latter Member State is deemed to have limited tax liability in that Member State on the dividends in question, does Article 43 EC, read in conjunction with Article 48 EC (and/or Article 56 EC), preclude legislation under which the latter Member requires the company liable for retaining the tax at source (subsidiary) to pay overdue interest in the event of overdue payment of the tax at source claim at a higher rate of interest than the overdue interest rate that the Member State charges on corporation tax claims lodged against a company resident in the same Member State? 8. Should the Court answer question 2 in the affirmative and the answer to question 3 is that it is not for the national courts to define what is included in the concept ‘beneficial owner’, and if a company (parent company) resident in a Member State cannot, on that basis, be deemed exempt from tax at source pursuant to Directive 90/435/EEC concerning dividends received from a company resident in another Member State (subsidiary), is the latter Member State then bound pursuant to Directive 90/435/EEC or Article 10 EC to state whom the Member State in that case deems to be the beneficial owner? 9. If a company resident in a Member State (parent company) is in fact deemed not to be exempt from tax at source under Directive 90/435/EEC concerning dividends received from a company resident in another Member State (subsidiary), does Article 43 EC, read in conjunction with Article 48 (in the alternative Article 56 EC), viewed separately or as a whole, preclude legislation under which: (a) the latter Member State requires the subsidiary to retain tax at source on the dividends and makes that person liable to the authorities for the non-retained tax at source, where there is no such duty to retain tax at source when the parent company is resident in the Member State? (b) the latter Member State calculates overdue interest on the tax at source owing? The EU Court of Justice is requested to include the answer to questions 6 and 7 in its answer to question 9. 10. In circumstances where: (1) a company (parent company) resident in a Member State fulfils the requirement in Directive 90/435/EEC of owning (in 2005 and 2006) at least 20% of the share capital of a company (subsidiary) resident in another Member State; (2) the parent company is in fact deemed not to be exempt from tax at source pursuant to Article 1(2) in Directive 90/435/EEC concerning dividends distributed by the subsidiary; (3) the parent company’s (direct or indirect) shareholder(s), resident in a non-EU/EEA country, are deemed to be the beneficial owner(s) of the dividends in question; (4) the aforementioned (direct or indirect) shareholder(s) also do not fulfil the aforementioned capital requirement; does Article 56 EC then preclude legislation under which the Member State where the subsidiary is situated taxes the dividends in question when the Member State in question deems resident companies fulfilling the capital requirement in Directive 90/435/EEC, that is to say, in fiscal years 2005 and 2006 owns at least 20% of the share capital in the dividend-distributing company (15% in 2007 and 2008 and 10% thereafter), to be tax-exempt on such dividends? ____________ 1 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. OJ 1990 L 225, p. 6