Order — ECLI:EU:C:2008:239
Date: 2008-04-23
Language of the case: English
Court formation: Fourth Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Right of establishment;Taxation;Free movement of capital;Freedom to provide services
Concepts: Free movement of capital and freedom of payments;General
Procedure: Reference for a preliminary ruling
Origin: United Kingdom

Summary of the Order 1. Freedom of movement for persons – Freedom of establishment – Tax legislation – Corporation tax – Exemption of nationally-sourced dividends (Art. 43 EC) 2. Free movement of capital – Restrictions – Tax legislation – Corporation tax – Exemption of nationally-sourced dividends (Art. 56 EC) 3. Free movement of capital – Restrictions – Tax legislation – Corporation tax – Exemption of nationally-sourced dividends (Art. 56 EC) 4. Free movement of capital – Restrictions – Tax legislation – Corporation tax – Exemption of nationally-sourced dividends (Art. 56 EC) 5. Freedom of movement for persons – Freedom of establishment – Tax legislation – Taxation of company profits (Arts 43 EC and 48 EC) 6. Free movement of capital – Restrictions – Tax legislation – Corporation tax (Arts 56 EC, 57 EC and 58 EC) 7. Community law – Rights conferred on individuals – Infringement by a Member State – Obligation to make good damage caused to individuals (Arts 43 EC and 56 EC) 8. Community law – Rights conferred on individuals – Infringement by a Member State – Obligation to make good damage caused to individuals 1. Article 43 EC is to be interpreted as meaning that it does not preclude legislation of a Member State which exempts from corporation tax dividends which a resident company receives from another resident company, when that State imposes corporation tax on dividends which a resident company receives from a non-resident company in which the resident company has a shareholding enabling it to exercise a definite influence over the decisions of that non-resident company and to determine its activities, while at the same time granting a tax credit for the tax actually paid by the company making the distribution in the Member State in which it is resident, provided that the rate of tax applied to foreign-sourced dividends is no higher than the rate of tax applied to nationally-sourced dividends and that the tax credit is at least equal to the amount paid in the Member State of the company making the distribution, up to the limit of the amount of the tax charged in the Member State of the company receiving the distribution. (see para. 43, operative part 1) 2. Article 56 EC is to be interpreted as meaning that it does not preclude legislation of a Member State which exempts from corporation tax dividends which a resident company receives from another resident company, when that State imposes corporation tax on dividends which a resident company receives from a non-resident company in which the resident company holds at least 10% of the voting rights, while granting a tax credit for the tax actually paid by the company making the distribution in the Member State in which it is resident, provided that the rate of tax applied to foreign-sourced dividends is no higher than the rate of tax applied to nationally-sourced dividends and that the tax credit is at least equal to the amount paid in the Member State of the company making the distribution, up to the limit of the amount of the tax charged in the Member State of the company receiving the distribution. (see para. 43, operative part 1) 3. Article 56 EC is to be interpreted as meaning that it precludes legislation of a Member State which exempts from corporation tax dividends which a resident company receives from another resident company, where that State levies corporation tax on dividends which a resident company receives from a non-resident company in which it holds less than 10% of the voting rights, without granting the company receiving the dividends a tax credit for the tax actually paid by the company making the distribution in the State in which the latter is resident. The mere fact that it is for a Member State to determine for such holdings whether, and to what extent, the imposition of a series of charges to tax on distributed profits is to be avoided does not of itself mean that it may operate a system under which foreign-sourced dividends and nationally‑sourced dividends are not treated in the same way. Irrespective of the fact that a Member State may, in any event, choose between a number of systems in order to prevent or mitigate the imposition of a series of charges to tax on distributed profits, the difficulties that may arise in determining the tax actually paid in another Member State cannot justify a restriction on the free movement of capital such as that which arises under that legislation. (see paras 41, 43, operative part 1) 4. Article 56 EC is to be interpreted as meaning that it precludes legislation of a Member State which allows an exemption from corporation tax for certain dividends received from resident companies by resident insurance companies but excludes such an exemption for similar dividends received from non-resident companies, in so far as it entails less favourable treatment of the latter dividends. Irrespective of the fact that a Member State may, in any event, choose between a number of systems in order to prevent or mitigate the imposition of a series of charges to tax on distributed profits, the difficulties that may arise in determining the tax actually paid in another Member State cannot justify a restriction on the free movement of capital such as that which arises under that legislation. Nor can such a restriction on the free movement of capital be justified by the need to ensure the cohesion of the tax system. While the tax legislation in question rests on the basis of a link between the tax advantage and the corresponding levy by providing for a tax credit for dividends received from a non-resident company in which the resident parent company holds not less than 10% of the voting power, the need for such a direct link must in fact lead to the same tax advantage being granted to companies receiving dividends from non-resident companies, in which the resident parent company holds less than 10% of the voting power, since those companies are also obliged to pay corporation tax on distributed profits in the State in which they are resident. (see paras 63, 67-69, operative part 2) 5. Articles 43 EC and 48 EC must be interpreted as precluding the inclusion, in the tax base of a resident company established in a Member State, of profits made by a controlled foreign company in another Member State, where those profits are subject in that State to a lower level of taxation than that applicable in the first State, unless such inclusion relates only to wholly artificial arrangements intended to escape the national tax normally payable. Such a tax measure must consequently not be applied where it is proven, on the basis of objective factors which are ascertainable by third parties, that despite the existence of tax motives, that controlled foreign company is actually established in the host Member State and carries on genuine economic activities there. However, Articles 43 EC and 48 EC are to be interpreted as not precluding national tax legislation which imposes certain compliance requirements where the resident company seeks exemption from taxes already paid on the profits of that controlled foreign company in the State in which it is resident, provided that the aim of those requirements is to verify that the controlled foreign company is actually established and that its economic activities are genuine without that entailing undue administrative constraints. (see para. 86, operative part 3) 6. Articles 56 EC to 58 EC are to be interpreted as not precluding the legislation of a Member State which grants a corporation tax concession in respect of certain dividends received from resident companies by resident companies but excludes such a concession for dividends received from companies established in a non-member country particularly where the grant of that concession is subject to conditions compliance with which can be verified by the competent authorities of that Member State only by obtaining information from the non-member country where the distributing company is established. Where the legislation of a Member State makes the grant of a tax advantage dependent on satisfying requirements, compliance with which can be verified only by obtaining information from the competent authorities of a third country, it is, in principle, legitimate for that Member State to refuse to grant that advantage if, in particular, because that third country is not under any contractual obligation to provide information, it proves impossible to obtain such information from that country. (see paras 95, 97, operative part 4) 7. In the absence of Community legislation, it is for the domestic legal system of each Member State to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from Community law, including the classification of claims brought by injured parties before national courts and tribunals. Those courts and tribunals are, however, obliged to ensure that individuals have an effective legal remedy enabling them to obtain reimbursement of the tax unlawfully levied on them and the amounts paid to that Member State or withheld by it directly against that tax. As regards other loss or damage which a person may have sustained by reason of a breach of Community law for which a Member State is liable, the latter is under a duty to make reparation for the loss or damage caused to individuals under the conditions set out in the Court’s case-law, namely that the rule of law infringed must be intended to confer rights on individuals, that the breach must be sufficiently serious, and that there must be a direct causal link between the breach of the obligation resting on the State and the loss or damage sustained by the injured parties, but that does not preclude the State from being liable under less restrictive conditions, where national law so provides. Subject to the right of reparation which flows directly from Community law where those conditions set out in the case-law are satisfied, it is on the basis of the rules of national law on liability that the State must make reparation for the consequences of the loss and damage caused, provided that the conditions for reparation of loss and damage laid down by national law are not less favourable than those relating to similar domestic claims and are not so framed as to make it, in practice, impossible or excessively difficult to obtain reparation. Where it is established that the legislation of a Member State constitutes a restriction on freedom of establishment prohibited by Article 43 EC or a restriction on the free movement of capital prohibited by Article 56 EC, the national court may, in order to establish the recoverable losses, determine whether the injured parties have shown reasonable diligence in order to avoid those losses or to limit their extent and whether, in particular, they availed themselves in time of all legal remedies available to them. However, the application of the provisions relating to the freedoms of movement would be rendered impossible or excessively difficult if claims for restitution or compensation based on infringement of those provisions had to be rejected or reduced solely because the companies concerned had not applied to the tax authorities for the benefit of a tax regime which national law, combined, where appropriate, with the relevant provisions of the double taxation conventions, denied them. (see paras 118, 126, 129, 131, operative part 5) 8. In order to determine whether a breach of Community law is sufficiently serious for a Member State to incur liability through loss or damage caused to individuals, it is necessary to take account of all the factors which characterise the situation brought before the national court. Those factors include, in particular, the clarity and precision of the rule infringed, whether the infringement and the damage caused were intentional or involuntary, whether any error of law was excusable or inexcusable, and the fact that the position taken by a Community institution may have contributed to the adoption or maintenance of national measures or practices contrary to Community law. On any view, a breach of Community law will clearly be sufficiently serious if it has persisted despite a judgment finding the infringement in question to be established or a preliminary ruling or settled case-law of the Court on the matter, from which it is clear that the conduct in question constituted an infringement. In a field such as direct taxation, the national court must take into account the fact that the consequences arising from the freedoms of movement guaranteed by the Treaty have been only gradually made clear. (see paras 122-124)