Order of the Court (Sixth Chamber) of 19 September 2012 — Levy and Sebbag
(Case C-540/11)
Free movement of capital — Direct taxation — Taxation of dividends — Bilateral convention which precludes double taxation — Subsequent amendment, by one of the two States party to the convention, of its national legislation, having the effect of
reintroducing double taxation — Obligations of the Member States under Articles 10 EC and 293 EC
1.                     References for a preliminary ruling — Response which may be clearly inferred from the case-law — Question referred which is
identical to a question in response to which a ruling has been given — Application of Article 104(3) of the Rules of Procedure
(Rules of Procedure of the Court of Justice, Art. 104(3)) (see para. 13)
2.                     Free movement of capital and freedom of payments — Restrictions — Fiscal legislation — Taxation of dividends — Bilateral tax
convention which precludes double taxation — Subsequent amendment, by one of the two States party to the convention, of its
national legislation, having the effect of reintroducing double taxation — Whether permissible — Measures to prevent double
taxation which fall within the competence of the Member States (Arts 10 EC, 56 EC and 293 EC) (see paras 17-19, 21, 22, 26-29,
operative part.)
Re:
Request for a preliminary ruling — Tribunal de première instance de Bruxelles — Interpretation of Articles 10 EC, 57(2) EC
and 293 EC — Permissibility of rules of national law which allow double taxation notwithstanding the existence of a bilateral
convention which precludes double taxation — Amendment of national law after the convention had been concluded — Bringing
into question of an acquired right — Obstacle to the free movement of capital.
Operative part
In so far as Community law, as applicable at the time of the facts in the main proceedings, does not lay down any general
criteria for the attribution of areas of competence between the Member States in relation to the elimination of double taxation
within the European Community, Article 56 EC, read in conjunction with Articles 10 EC and 293 EC, is to be interpreted as
meaning that it does not preclude a situation in which the Member State, which has undertaken, in a bilateral double taxation
convention, to establish a mechanism to eliminate such double taxation of dividends, then abolishes that mechanism by way
of a legislative amendment that has the effect of reintroducing a double taxation.