Judgment — ECLI:EU:C:2026:154
Date: 2026-03-05
Language of the case: Czech
Court formation: Sixth Chamber
Procedure: Reference for a preliminary ruling
Origin: Czechia

Translation C-828/24 – 1 
Case C-828/24 
Request for a preliminary ruling 
Date lodged: 
4 December 2024 
Referring court: 
Nejvyšší správní soud (Czech Republic) 
Date of the decision to refer: 
26 November 2024 
Applicant: 
Erdrich Umformtechnik GmbH 
Defendant: 
Odvolací finanční ředitelství 
  
ORDER 
The Nejvyšší správní soud (the Supreme Administrative Court, Czech Republic) 
[…] has ruled in the case of the applicant: Erdrich Umformtechnik GmbH […] 
v. the defendant: Odvolací finanční ředitelství (Appellate Tax Directorate, Czech 
Republic) […] challenging the defendant’s decisions of 21 October 2020, […] in 
proceedings concerning the applicant’s appeal in cassation challenging the 
judgment of the Městský soud v Praze (Prague City Court, Czech Republic) of 
11 April 2022, […] 
as  fo l lows : 
I. The following question is hereby referred to the Court of Justice of the 
European Union for a preliminary ruling: 
(1) Can Council Directive 2003/49/EC of 3 June 2003 on a common 
system of taxation applicable to interest and royalty payments made 
between associated companies of different Member States be 
interpreted as meaning that it enables the source State to grant, on the 
basis of a decision pursuant to Article 1(12), a tax exemption in respect 
of a period that preceded the point when an attestation and such 
EN 
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supporting information as the source State may reasonably ask for was 
provided, or that preceded the point when the decision itself was issued? 
(2) If the answer to the first question is affirmative, does it follow from 
the Directive or another rule of EU law, either directly or indirectly, 
that there is 
(a) any time limit for the provision of an attestation and such supporting 
information as the source State may reasonably ask for, for the purpose 
of a decision granting an exemption under Article 1(12); or 
(b) any time limit on the length of the period preceding the provision of an 
attestation and such supporting information as the source State may 
reasonably ask for, in respect of which a tax exemption can be granted? 
II. The proceedings concerning the appeal in cassation are hereby stayed. 
Grounds : 
I. Subject of the proceedings 
[1] The applicant sought a decision granting an exemption from income tax on 
royalty payments, pursuant to Paragraph 38nb of zákon č. 586/1992 Sb., o daních 
z příjmů (Law No 586/1992 on Income tax) (‘ITL’), in respect of the tax period of 
the calendar years 2014, 2015, 2016, 2017, and 2018. The defendant granted the 
applicant the right to an exemption in respect of the tax periods of 2017 and 2018, 
dismissing the rest of the application, as the applicant applied for the exemption 
on 5 June 2019, and, according to the defendant, it filed the application in respect 
of the tax periods of 2014, 2015, and 2016 after the deadline (late). 
[2] The applicant challenged the defendant’s decision by an action that was 
dismissed by the Prague City Court. According to the Prague City Court, the 
defendant correctly applied the two-year time limit in assessing the applicant’s 
requests. Paragraph 38nb ITL transposes into that law Council Directive 
2003/49/EC of 3 June 2003 on a common system of taxation applicable to interest 
and royalty payments made between associated companies of different Member 
States (‘the Directive’). According to the City Court, the application for a 
decision granting a tax exemption constitutes an application under Article 1(15) of 
the Directive, and the decision granting an exemption with respect to income from 
royalty payments then authoritatively confirms compliance with the conditions of 
Paragraph 38nb(2) ITL, or Article 1(13) in conjunction with Article 3 of the 
Directive. The ITL itself sets no time limit for submitting an application for a 
decision granting a tax exemption for income, but, according to the City Court, 
that time limit follows from Article 1(15), fourth sentence, of the Directive. 
According to that provision of the Directive, the period for the submission of an 
application amounts to at least two years from the date on which the royalty 
payments are made. That provision of the Directive does not set a specific time 
limit for the submission of an application, but it does set a minimum standard. 
ERDRICH UMFORMTECHNIK 
 
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Member States are therefore given a certain degree of discretion to set that period 
in their national legislation. Since no time limit has been set in national law in 
relation to Article 1(15) of the Directive, the Directive applied directly, in line 
with the case-law of the Court of Justice of the European Union (‘CJEU’). 
According to the City Court, the time limit for submitting an application for a 
decision granting an exemption amounts to exactly two years. 
[3] The Supreme Administrative Court (‘SAC’) had formerly held that 
Article 1(15) of the Directive must be interpreted to the effect that, once the 
requirements for a tax exemption laid down in Article 1(13) and Article 3 of the 
Directive are fulfilled, the two-year period during which a decision under 
Article 1(12) of the Directive and Paragraph 38nb ITL can be sought starts to run. 
Similarly, such an exemption may be applied for retroactively in relation only to 
such a two-year period (judgment of the SAC of 4 January 2018, ref. no. 3 Afs 
250/2016 40, […] paragraph 25). 
[4] The applicant (‘complainant’) lodged an appeal in cassation with the 
Supreme Administrative Court challenging the judgment of the City Court. It 
disagrees with to the application of the vertical direct effect of Article 1(15) of the 
Directive. In the complainant’s case, it was applied downwardly, in breach of 
CJEU case-law, to the complainant’s disadvantage (CJEU judgment of 
26 February 1986, Marshall, C-152/84, EU:C:1986:84, paragraph 48). The 
application of the two-year time limit results in the dismissal of the complainant’s 
application for a decision granting a tax exemption, due to which the complainant 
will be unable to apply a tax exemption, and consequently its tax will be higher. 
Furthermore, Article 1(15) of the Directive does not meet the requirement of 
precision and unconditionality. 
[5] According to the complainant, the City Court and the administrative 
authorities do not distinguish between individual terms used by the Directive and 
the ITL and use them interchangeably. Neither the ITL nor the Directive sets a 
time limit for documenting the facts stated in Article 1(13) of the Directive, or the 
time limit for the submission of an application for a decision granting a tax 
exemption under Paragraph 38nb(1) ITL. The time limit set out in Article 1(15) of 
the Directive sets the minimum time limit for the refund of a tax that has already 
been withheld, not for the submission of an application for a decision under 
Article 1(12) and (13) of the Directive. 
[6] The application for a decision granting a tax exemption under 
Paragraph 38nb ITL constitutes an application under Article 1(11) to (13) of the 
Directive. The complainant stated that an application for a tax refund under 
Article 1(15) of the Directive constitutes, from the perspective of national law, a 
tax return. According to the complainant, that is consistent with the text of 
Article 1(15), as it calculates the minimum time limit from the point when the 
royalty payments were made, rather than the factual fulfilment of the requirements 
for a tax exemption. That provision therefore cannot be applied in a situation 
when the tax had not yet been withheld, as no tax refund is possible yet. 
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[7] According to the complainant, national law provides for its own time limits 
for the refund of withheld tax, in the form of a time-limit for the determination of 
the tax in Paragraph 148 and the time limit for the payment of the tax in 
Paragraph 160 of zákon č. 280/2009 Sb., daňový řád (Law No 280/2009, the Tax 
Code). Hence, there is no need to invoke the direct effect of the Directive. 
According to the Tax Code, the application for the refund of withheld tax 
constitutes a tax return, as defined in Paragraph 139(1) of the Tax Code and 
Paragraph 143(1) of the Tax Code. 
II. Applicable EU and national law 
[8] Article 1 of Council Directive 2003/49/EC of 3 June 2003 on a common 
system of taxation applicable to interest and royalty payments made between 
associated companies of different Member States stipulates (emphasis added by 
the SAC): 
11. The source State may require that fulfilment of the requirements laid 
down in this Article and in Article 3 be substantiated at the time of payment 
of the interest or royalties by an attestation. If fulfilment of the requirements 
laid down in this Article has not been attested at the time of payment, the 
Member State shall be free to require deduction of tax at source. 
12. The source State may make it a condition for exemption under this 
Directive that it has issued a decision currently granting the exemption 
following an attestation certifying the fulfilment of the requirements laid 
down in this Article and in Article 3. A decision on exemption shall be 
given within three months at most after the attestation and such 
supporting information as the source State may reasonably ask for have 
been provided, and shall be valid for a period of at least one year after it 
has been issued. 
13. For the purposes of paragraphs 11 and 12, the attestation to be given 
shall, in respect of each contract for the payment, be valid for at least one 
year but for not more than three years from the date of issue and shall 
contain the following information: 
(a) proof of the receiving company's residence for tax purposes and, 
where necessary, the existence of a permanent establishment certified 
by the tax authority of the Member State in which the receiving 
company is resident for tax purposes or in which the permanent 
establishment is situated; 
(b) beneficial ownership by the receiving company in accordance with 
paragraph 4 or the existence of conditions in accordance with 
paragraph 5 where a permanent establishment is the recipient of the 
payment; 
ERDRICH UMFORMTECHNIK 
 
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(c) fulfilment of the requirements in accordance with Article 3(a)(iii) in 
the case of the receiving company; 
(d) a minimum holding or the criterion of a minimum holding of voting 
rights in accordance with Article 3(b); 
(e) the period for which the holding referred to in (d) has existed. 
Member States may request in addition the legal justification for the 
payments under the contract (e.g. loan agreement or licensing contract). 
[…] 
15. If the paying company or permanent establishment has withheld tax at 
source to be exempted under this Article, a claim may be made for 
repayment of that tax at source. The Member State may require the 
information specified in paragraph 13. The application for repayment 
must be submitted within the period laid down. That period shall last for at 
least two years from the date when the interest or royalties are paid. 
[9] In national law, this matter is regulated by Paragraph 19 and Paragraph 38nb 
of Law No 586/1992, on Income tax: 
Paragraph 19 
Tax exemption 
(1) The following shall be exempt from tax 
[…] 
(zj) royalty payments arising for a business corporation that is a tax 
resident of an EU Member State other than the Czech Republic from: 
1. a business corporation that is a tax resident of the Czech Republic; or 
2. a permanent establishment of a business corporation that is a tax resident 
of an EU Member State other than the Czech Republic, in the Czech 
Republic, 
[…] 
(5) The exemption under subparagraph 1(zj) and (zk) may be applied when 
1. the payer of interest on debt finance or on royalty payments and the 
recipient of interest from debt finance or on royalty payments are persons 
directly linked through capital for a period of at least 24 consecutive 
months; and 
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2. the recipient of interest from debt finance or on royalty payments is their 
beneficial owner; and 
3. the interest on debt finance or royalty payments is not attributable to a 
permanent establishment in the Czech Republic or a state that is not a 
European Union Member State, a state of the European Economic Area or 
the Swiss Confederation; and 
4. a decision under Paragraph 38nb has been issued for the recipient of 
interest from debt finance or on royalty payments.  
The exemption may be applied before the condition specified in point (1) is 
met, but the condition must be met subsequently. If this condition is not 
complied with, subparagraph (4) shall be followed mutatis mutandis. 
Paragraph 38nb 
Decision granting a tax exemption for income from royalty fees and interest on 
debt finance 
(1) A taxable person who complies with the conditions for an exemption 
under Paragraph 19(1)(zj) and (zk), shall request from its locally 
competent tax administrator a decision granting a tax exemption for 
its income from royalty payments and interest on debt finance. The 
application can also be lodged through the payer, but the decision 
shall always be issued by the tax administrator having local 
competence with respect to the taxable person. 
(2) The mandatory particulars of an application for a decision granting a 
tax exemption are 
(a) a certificate of tax residency of the recipient of royalty payments or 
interest on debt finance issued by a foreign tax administrator, 
(b) information documenting that the recipient of royalty payments or 
interest on debt finance is their beneficial owner, 
(c) confirmation from a foreign tax administrator showing that the 
recipient of royalty payments or interest on debt finance is subject to 
any of the taxes specified in the applicable European Community 
legislation that are of an identical or similar nature to income tax 
[Paragraph 19(3)(a), point 3], 
(d) information documenting that the recipient of royalty payments or 
interest on debt finance has the legal form specified in the applicable 
European Community legislation, 
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(e) information documenting that the recipient and payer of royalty 
payments or interest on debt finance are persons directly linked 
through capital, and for what duration, 
(f) the legal title for the payment of royalty payments or interest. 
(3) The information in an application and its mandatory particulars must 
be applicable for a period of at least one year and must not be older 
than three years. In the event of a change that may have an impact on 
compliance with the conditions for an exemption under 
Paragraph 19(1)(zj) and (zk), the taxable person shall inform thereof, 
without delay, the payer and its locally competent tax administrator. 
(4) On the basis of an application whose mandatory particulars are 
specified in subparagraph (2), the tax administrator shall issue a 
decision granting an exemption, provided that the conditions specified 
in Paragraph 19(1)(zj) and (zk) and (5) and Paragraph 23(7) are met. 
The tax administrator shall issue that decision within three months of 
the point when the taxable person provided all information and 
evidence required to document that the conditions for the exemption 
have been met. The decision is also binding for the payer of the tax. 
III. Analysis of the questions referred for a preliminary ruling 
Admissibility of the granting of an exemption in respect of a period preceding the 
point when an attestation and supporting information was provided or the point 
when the decision granting the exemption was issued 
[10] In its case-law, the CJEU has not yet dealt in detail with the issue that 
constitutes the foundation of the questions referred. 
[11] The first question is whether a decision under Article 1(12) of the Directive 
can grant an exemption from income tax even in respect of a period that precedes 
the point when the attestation and supporting information was provided (or the 
application for a decision granting an exemption under Paragraph 38nb ITL 
submitted). In that case, this would effectively constitute a retroactive ratification 
of a previous failure to withhold a tax, in a case when the taxable person 
documents ex post that the conditions for the exemption have been met. It is not 
possible to infer, by mere interpretation of the text, from the Czech language 
version of the Directive whether the EU legislator envisaged or permitted such 
practice in Member States. Nor is it, however, possible to infer that it would 
prohibit its existence. Despite this, the Supreme Administrative Court had doubts 
as to the admissibility of such an interpretation, basing its doubts on the following 
grounds. 
[12] First, the Supreme Administrative Court operates on the assumption that the 
Directive permits several possible procedures for granting a tax exemption, from 
which Member States may choose when transposing the Directive. In its national 
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legislation (Paragraph 19(5), point 4, ITL), the Czech Republic took advantage of 
the option given by Article 1(12) of the Directive and rendered the tax exemption 
conditional on a decision, in the application for which the applicant must 
document compliance with the requirements set out in Article 1 and Article 3 of 
the Directive (Paragraph 38nb ITL). According to the Czech national legislation, 
the issuance of that decision is therefore a prerequisite for the granting of that 
exemption. In those States that decided not to take advantage of the option given 
by Article 1(12) of the Directive, the regime regulated by Article 1(11) can be 
applied, according to which tax entities document, by an attestation, compliance 
with the requirements set out in the Directive at the time of the payment of royalty 
payments. 
[13] Given this construction of the relevant legislation, the Supreme 
Administrative Court doubts whether the granting of an exemption in respect of a 
period preceding the provision of an attestation and supporting information (or the 
submission of an application for a decision granting an exemption), or the 
issuance of a decision granting an exemption does not run contrary to the very 
purpose and meaning of the option given to Member States in Article 1(12) of the 
Directive. It would seem illogical that the objective of the EU legislator would be 
to embody in Article 1(12) of the Directive the option to grant an exemption 
retroactively, if at the same time, Article 1(15) allows for a scheme in which it is 
possible (apparently) without any intermediate step to request a refund of a tax 
that had been withheld in a previous tax period. The legislative construction of the 
Directive indicates, rather, that the purpose of the decision under Article 1(12) is 
purely to secure a formal declaration of the fulfilment of the criteria for granting 
an exemption, with a pro futuro effect. 
[14] Furthermore, the Supreme Administrative Court finds it unclear whether a 
decision granting an exemption under Article 1(12) of the Directive must be 
approached as a substantive or a formal condition for the granting of an 
exemption. If the issuance of a decision granting an exemption were a substantive 
condition, the possibility to grant an exemption in respect of a period when the tax 
entity did not yet have that decision would be completely precluded, by definition. 
A clarification of the nature of the decision granting an exemption therefore may 
be a prerequisite for answering the first question referred for a preliminary ruling. 
[15] Second, the Supreme Administrative Court’s doubts about the admissibility 
of the granting of an exemption prior to the provision of an attestation and 
supporting information (or the submission of an application for a decision 
granting an exemption under Paragraph 38nb ITL), or the issuance of a decision 
granting an exemption, arise from the difference between the texts of individual 
language versions of the Directive. As follows from settled CJEU case-law, the 
interpretation of EU legislation requires a comparison of the different language 
versions (CJEU judgment of 6 October 1982, CILFIT and Others, 283/81, 
EU:C:1982:335, paragraph 18). In the case of doubt, the text of a provision must 
be interpreted and applied in the light of the versions existing in the other official 
ERDRICH UMFORMTECHNIK 
 
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languages (CJEU judgment of 17 June 1998, Mecklenburg, C-321/96, 
EU:C:1998:300, paragraph 29). 
[16] The Czech language version of Article 1(12) states that ‘stát zdroje může 
podmínit osvobození od daně dle této směrnice rozhodnutím, jímž přizná 
osvobození od daně na základě osvědčení potvrzujícího splnění požadavků 
uvedených v tomto článku a v článku 3.’ (The source State may condition the tax 
exemption under this Directive on a decision granting a tax exemption on the 
basis of an attestation confirming compliance with the requirements laid down in 
this Article and in Article 3). The tense used does not indicate whether a decision 
granting a tax exemption pertaining to a period prior to the submission of an 
application for decision granting a tax exemption may be issued subsequently, or 
whether the tax entities had to have a decision granting an exemption in relation to 
the period in respect of which they are to be exempt from tax, prior to the start of 
that period. In other language versions no similar ambiguity arises. The Supreme 
Administrative Court refers for example to the English language version (‘The 
source State may make it a condition for exemption under this Directive that it has 
issued a decision currently granting the exemption following an attestation 
certifying the fulfilment of the requirements laid down in this Article and in 
Article 3.’), the German version (‘Der Quellenstaat kann die Befreiung gemäß 
dieser Richtlinie davon abhängig machen, dass er aufgrund einer Bestätigung, 
wonach die in diesem Artikel und in Artikel 3 geforderten Voraussetzungen erfüllt 
sind, eine Entscheidung über die Gewährung der Befreiung gefällt hat.’), the 
French version (‘L'État membre d'origine peut subordonner l'exonération prévue 
par la présente directive au fait qu'il a rendu une décision qui accorde 
actuellement l'exonération à la suite d'une attestation certifiant que les conditions 
exigées dans le présent article et l'article 3 sont remplies.’), the Spanish version 
(‘El Estado de origen podrá establecer como condición de exención en virtud de 
la presente Directiva la previa adopción por su parte de una decisión de exención 
que esté en vigor, consecutiva a la presentación de un certificado que atestigüe el 
cumplimiento de los requisitos previstos en el presente artículo y en el artículo 
3.’), and the Slovak version (‘Štát pôvodu môže ako podmienku pre oslobodenie 
od dane na základe tejto smernice stanoviť, že na základe potvrdenia 
dosvedčujúceho splnenie požiadaviek v tomto článku a v článku 3 vydal 
rozhodnutie o oslobodení od dane.’), [emphasis added in all the quotes]. In light 
of these language versions, the second possible interpretation seems plausible, 
according to which a decision granting an exemption constitutes a basis issued for 
the purpose of an ex-ante tax exemption, as a document of the fulfilment of the 
relevant criteria, with exclusively pro futuro effects. On the other hand, in terms 
of the tense, the Italian language version is worded with ambiguity similar to the 
Czech version (‘Lo Stato d'origine può subordinare l'esenzione a norma della 
presente direttiva all'emanazione di una decisione con cui l'esenzione è concessa 
attualmente sulla scorta di un certificato che attesta il soddisfacimento dei 
requisiti previsti nel presente articolo e nell'articolo 3.’), and so is the Polish 
version (‘Państwo źródła może uczynić warunkiem uzyskania zwolnienia na mocy 
niniejszej dyrektywy wydanie decyzji obecnie przyznającej zwolnienie w 
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następstwie zaświadczenia potwierdzającego spełnienie wymagań ustanowionych 
w niniejszym artykule oraz w art. 3.’). 
[17] Aside from the Czech Republic, only two other Member States, Slovenia 
and the Federal Republic of Germany, have decided to take advantage of the 
possibilities given by Article 1(12) of the Directive; however, in neither of those 
Member States does the national regulation feature a provision permitting the 
granting of an exemption in respect of a period preceding the provision of an 
attestation and supporting information under Article 1(12) of the Directive. For 
example, the German national regulation implicitly disallows the issuance of a 
retroactive confirmation of an exemption [Paragraph 50c(2), fourth sentence, of 
the Income Tax Law (Einkommensteuergesetz – EStG): ‘Eine 
Freistellungsbescheinigung ist auf einen Zeitraum von höchstens drei Jahren 
frühestens ab dem Tag, an dem der Antrag beim Bundeszentralamt für Steuern 
eingeht, zu befristen und von der Einhaltung der Voraussetzungen ihrer Erteilung 
während ihrer Geltung abhängig zu machen; sie kann mit weiteren 
Nebenbestimmungen gemäß Paragraph 120 Absatz 2 der Abgabenordnung 
versehen werden.’]. 
A time limit on the possibility to apply for and grant an exemption in respect of the 
period preceding the time when the attestation and supporting information was 
provided or preceding the time when the decision granting the exemption was 
issued 
[18] If the Court of Justice answers the first question referred in the affirmative, 
the Supreme Administrative Court asks a second, related question. Its subject is 
whether it follows from the Directive, whether directly or indirectly, that there is 
any deadline for the submission of an application for a decision granting an 
exemption (the provision of an attestation and supporting information) under 
Article 1(12) thereof, or that there is any time-restriction as to the duration of a 
period preceding the submission of an application for a decision granting an 
exemption (the provision of an attestation and supporting information) in respect 
of which a tax exemption can be granted. 
[19] In the complainant’s case, the defendant applied a two-year time limit 
inferred from the minimum period for the submission of an application of a 
refund of withheld tax that is laid down in Article 1(15) of the Directive. 
Apparently, that period commences at the point when the requirements for the 
exemption, within the meaning of Article 1(13) of the Directive, are de facto 
fulfilled. According to the defendant, an income tax exemption can only be 
granted for a thus defined period of two years, provided that the applicant met the 
statutory requirements during that time. 
[20] If the Directive allowed the granting of an exemption in respect of a period 
preceding the submission of an application for a decision granting an exemption 
(preceding the date of issuance of the decision itself), the Supreme Administrative 
Court would have to assess whether Czech legislation or the Directive put a time 
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limit on the possibility to submit an application for a decision granting an 
exemption (the provision of an attestation and supporting information) or to grant 
an exemption retroactively. Nevertheless, the Supreme Administrative Court is 
not convinced about the correctness of the conclusions on which the defendant’s 
decision under review is based. Above all, it has doubts about whether the 
existence of any time limit relevant for the submission of an application for 
decision granting a tax exemption under Article 1(12) of the Directive can be 
inferred from Article 1(15) of the Directive. According to the Supreme 
Administrative Court, Article 1(15) of the Directive lays down a minimum 
standard, that is, a rule addressed to the Member States in the transposition of the 
Directive, which cannot be interpreted, applying downwards vertical effect, as a 
definition of a time limit for the submission of an application for a decision 
granting an exemption (the provision of an attestation and supporting 
information). Additionally, it is not possible to replace by the minimum duration 
of the period laid down in Article 1(15) of the Directive in relation to an 
application for the refund of withheld tax the deadline for the submission of an 
application for a decision granting an exemption. According to the Supreme 
Administrative Court, those are two separate concepts that cannot be combined. 
Hence, the Supreme Administrative Court has doubts that any deadline limiting 
the period during which a decision granting an exemption can be sought or a 
period in relation to which a tax exemption can be granted would follow directly 
from the provisions of the Directive. 
[21] According to the Supreme Administrative Court, the only time restriction 
could de-facto arise from Article 1(13) of the Directive, according to which ‘the 
attestation to be given shall, in respect of each contract for the payment, be valid 
for at least one year but for not more than three years from the date of issue’, or 
from the transposing provision, Paragraph 38nb(3) ITL, according to which the 
‘information in an application and its mandatory particulars must be applicable 
for a period of at least one year and must not be older than three years’. The 
Supreme Administrative Court holds, however, that beyond the scope of 
Article 1(13), the Directive in no way regulates the period for the submission of 
an application for a decision granting an exemption (for the provision of an 
attestation and supporting information) under Article 1(12) of that directive – it 
seems that the regulation of any time limit is therefore left entirely to the Member 
States. 
IV. […] 
[the question referred repeated] 
[…] 
[procedural particulars, date, place, signature] […]