OPINION OF ADVOCATE GENERAL

KOKOTT

delivered on 27 April 2017 ( 1 )

Case C‑39/16

Argenta Spaarbank NV

v

Belgische Staat

(Request for a preliminary rulingfrom the Rechtbank van eerste aanleg Antwerpen (Court of First Instance, Antwerp, Belgium))

(‘Tax law — Directive 90/435/EEC — Parent-Subsidiary Directive — Article 1(2), Article 3(2) and Article 4(2) — Exemption of dividend income from corporation tax — Costs relating to the holding — Abuse of rights’)

I – Introduction

1. The purpose of these preliminary ruling proceedings is to clarify whether Directive 90/435/EEC ( 2 ) (‘the Parent-Subsidiary Directive’) conflicts with a Belgian rule according to which interest payments by a company are not regarded as decreasing profits to the extent that in the same tax year it receives exempted dividends from holdings which have been owned by the company for less than a year. This does not depend on any relationship between the interest paid and the holdings.

2. The question arises against the backdrop of the fiscal treatment of interest expenses claimed by the Belgian-based credit institution Argenta Spaarbank in the years 2000 and 2001. As it also received dividends in the corresponding period from company shares that had been held for less than a year, the tax administration treated interest expenses, to the amount of this dividend income, as non-deductible.

3. The court is asked to examine the disputed measure, first, in the light of Article 4(2) of the Parent-Subsidiary Directive, according to which the Member States may provide for a prohibition on the deduction of costs relating to the holding. Second, the referring court asks whether the rule may be covered by Article 1(2) of the Parent-Subsidiary Directive, according to which national provisions on the prevention of tax evasion remain unaffected. However, it is first necessary to determine whether a Member State is actually bound by the Parent-Subsidiary Directive in the circumstances described.

II – Legal framework

A – EU law

4. According to Article 1(1), the Parent-Subsidiary Directive must be applied by every Member State inter alia to distributed profits which accrue to companies of this state from subsidiaries of another Member State.

5. Article 1(2) of the Parent-Subsidiary Directive provides: ‘This Directive shall not preclude the application of domestic or agreement-based provisions required for the prevention of fraud or abuse.’

6. According to Article 3(1)(a) of the Parent-Subsidiary Directive, the status of ‘parent company’ within the meaning of the Directive is attributed ‘at least to a company of a Member State which fulfils the conditions set out in Article 2 and has a minimum holding of 25% in the capital of a company of another Member State fulfilling the same conditions’.

7. By way of derogation from this, according to the second indent of Article 3(2) of the Parent-Subsidiary Directive, Member States have the option of ‘not applying this Directive to companies of that Member State which do not maintain for an uninterrupted period of at least two years holdings qualifying them as parent companies …’.

8. Article 4 of the Parent-Subsidiary Directive provides: ‘1. Where a parent company, by virtue of its association with its subsidiary, receives distributed profits, the State of the parent company shall, except when the latter is liquidated, either: – refrain from taxing such profits, or – tax such profits while authorising the parent company and the permanent establishment to deduct from the amount of tax due that fraction of the corporation tax related to those profits and paid by the subsidiary … up to the limit of the amount of the corresponding tax due. 2. Each Member State shall retain the option of providing that any costs relating to the holding and any losses resulting from the distribution of the profits of the subsidiary may not be deducted from the taxable profits of the parent company. Where the management costs relating to the holding in such a case are fixed as a flat rate, the fixed amount may not exceed 5% of the profits distributed by the subsidiary. …’

B – Belgian law

9. It follows from Article 202(1) and (2) of the Wetboek van de inkomstenbelastingen 1992 (Income Tax Code of 1992, ‘the Income Tax Code’), as amended, that dividends are deducted from the profits of the taxation period, provided that at the time of their allocation or distribution the company acquiring the dividends has a holding of at least 5% of the capital of the company distributing them. If dividend income accrues to a credit institution, there is no minimum holding threshold.

10. According to Article 204(1) of the Income Tax Code, income that could be deducted in accordance with Article 202 is regarded as included in the profits of the taxation period of up to 95% of the accrued or received sum.

11. Article 198(10) of the Income Tax Code provides: ‘Without prejudice to the application of Article 55, interest, up to an amount equal to the amount of the dividends that may be deducted pursuant to Articles 202 to 204, shall not be regarded as a business expense in cases where the dividends were derived from shares by a company which had not held those shares for an uninterrupted period of at least one year at the time of their transfer.’

III – Main proceedings and proceedings before the Court

12. The current proceedings result from a legal dispute between the credit institution Argenta Spaarbank NV and the Belgian tax authorities.

13. Argenta Spaarbank received dividends in the financial years 1999 and 2000 (tax years 2000 and 2001) in the converted amounts of EUR 75837.87 and EUR 296491.04 respectively from holdings in companies established in Belgium and in other Member States of the Union which it had not held for a full year at the time of the dividend distribution.

14. In the same years, the applicant paid interest amounts, after conversion, of EUR 290089631.16 and EUR 330244583.95, respectively, which were recorded in the ‘Interest and similar expenses’ items of the income statement. According to the referring court, it is not disputed that the interest paid was not connected with loans for the purchase of the holdings in question.

15. In applying Article 198(10) of the Income Tax Code, the tax administration added to the non-deductible expenses interest in the amount of the dividends received from holdings that had been held for less than a year. Argenta Spaarbank objected that the application of that provision must be limited to cases in which there is a causal relationship between the interest and the dividends for which a deduction is being claimed in accordance with Article 202 of the Income Tax Code.

16. The referring court does not share this view, but has doubts whether, as a result, the Parent-Subsidiary Directive conflicts with Article 198(10) of the Income Tax Code. It therefore turned to the Court of Justice on 8 January 2016 in accordance with Article 267 TFEU with the following questions: ‘(1) Does Article 198 point 10 of the 1992 Income Tax Code, in the version which was in force for the 2000 and 2001 tax years, violate Article 4(2) of the Parent-Subsidiary Directive, in so far as that Article provides that interest may not be regarded as a business expense up to an amount corresponding to the amount of the dividends qualifying for exemption under Articles 202 to 204 where those dividends are derived from shares which, at the time of their transfer, had not been held for an uninterrupted period of at least one year, in which connection no distinction is made according to whether those interest payments relate to (the financing of) the holding from which the dividends qualifying for exemption were derived or not? (2) Is Article 198(10) of the Income Tax Code, in the version which was in force for the 2000 and 2001 tax years, a provision for the prevention of tax evasion and abuses within the meaning of Article 1(2) of the Parent-Subsidiary Directive and, if so, does Article 198(1) of the Income Tax Code go beyond what is necessary for the prevention of such tax evasion or abuses when it provides that interest is not to be regarded as a business expense up to an amount corresponding to the amount of the dividends qualifying for exemption under Articles 202 to 204, where those dividends are derived from shares that, at the time of their transfer, had not been held for an uninterrupted period of at least one year, in which connection no distinction is made about whether those interest payments relate to (the financing of) the holding from which the dividends qualifying for exemption were derived or not?’

17. In the procedure before the Court, Argenta Spaarbank, the Kingdom of Belgium and the European Commission submitted written statements and participated in the oral procedure on 30 March 2017.

IV – Legal assessment

A – Preliminary remarks

18. To better understand the questions referred, it is necessary to first recall the purpose and scheme of the Parent-Subsidiary Directive and to explain in broad terms its transposition in Belgium, to the extent here relevant.

19. The aim of the Parent-Subsidiary Directive is to ensure that cross-border distributions of profits that fall within its scope of application are tax neutral. An economic double taxation of profits — firstly in a subsidiary established in one Member State and then in its parent company established in another Member State — is to be avoided. ( 3 )

20. To this end, Article 4(1) of the Parent-Subsidiary Directive provides that the Member State of the parent company either does not tax the distributed profits received or, in the event that they are taxed, permits the tax paid by the subsidiary to be deducted. However, Member States may determine in accordance with Article 4(2) of the Parent-Subsidiary Directive that the costs relating to the holding in the subsidiary are not deductible by the parent company. In this regard, management costs may be fixed as a flat rate, but the fixed amount may not exceed 5% of the profits distributed by the subsidiary.

21. Belgium enacted a law to transpose Article 4 of the Parent-Subsidiary Directive according to which, at the level of the resident parent company, once the legally prescribed conditions were fulfilled, dividends received could be deducted, up to 95%, from that company’s profits, and the remaining 5% would be subject to the tax on its income.

22. However, where a company receives dividends from holdings which at the time of their further transfer had not been held for a full year, Article 198(10) of the Income Tax Code — since repealed — provided that the interest claimed by the company in the same tax period cannot be deducted to the same extent. As a consequence, there is never any exemption of the dividend income in question if the company declares higher interest expenses.

23. The referring court is essentially asking, with both of these questions, whether the Parent-Subsidiary Directive precludes this provision.

B – Admissibility

24. Belgium disputes the admissibility of the questions referred.

25. In the view of this Member State, the clarification of the main proceedings does not depend on the answers to the question referred, as the Parent-Subsidiary Directive is not applicable there. Article 198(10) of the Income Tax Code relates to holdings of less than a year. Article 3(2) of the Directive permits the Directive to not be applied in respect of precisely such holdings.

26. To be admissible, questions referred in accordance with Article 267 TFEU must be decisive for the decision in the main proceedings. The crucial factor, however, is the assessment of the referring court, ( 4 ) which, in principle, the Court does not review, except in the case of obvious errors. ( 5 )

27. Such errors are not apparent in this case. The main proceedings ultimately relate to the tax treatment of dividends which Argenta Spaarbank received on the basis of holdings in companies that were established, inter alia, in other Member States. This is the subject matter of the Parent-Subsidiary Directive. In contrast, the view put forward by Belgium, that there is no connection to the Parent-Subsidiary Directive in the specific circumstances, is to be argued in the context of an assessment of the content of the request for a preliminary ruling.

28. It follows that the questions referred for a preliminary ruling are admissible.

C – Answers to the questions referred

29. To answer the questions referred, it is first necessary to examine the applicability of the Parent-Subsidiary Directive (at 1 below). I will then examine Article 4(2) of the Parent-Subsidiary Directive (at 2 below) and finally Article 1(2) (at 3 below).

1. Applicability of the Parent-Subsidiary Directive

30. In the present case, the applicability of the Parent-Subsidiary Directive requires that Argenta Spaarbank can be viewed as a parent company within the meaning of Article 3(1)(a) of the Directive in respect of the dividends it has accrued. According to the wording of this provision, the company in question must therefore hold a share of at least 25% of the capital of a company in another Member State, but a lower threshold can also be provided for (‘at least to a company’).

31. Belgium has done the latter in its transposition of the Parent-Subsidiary Directive, as a minimum holding level of 5% was set out in Article 202 of the Income Tax Code and no threshold at all applies for credit institutions. Consequently, Argenta Spaarbank must be viewed as a parent company within the meaning of Article 3(1)(a) of the Directive.

32. However, Belgium submits that Article 198(10) of the Income Tax Code is covered by the exemption clause in the second indent of Article 3(2) of the Parent-Subsidiary Directive. Under this provision, Member States have the option of exempting their companies from the Directive if they have not remained in possession of a holding, on the basis of which they are deemed to be parent companies, for an uninterrupted period of at least two years. By contrast, Argenta Spaarbank and the Commission submit that Belgium has not made use of this option.

33. I share that view put forward by Belgium, for the following reasons.

34. The second indent of Article 3(2) of the Parent-Subsidiary Directive empowers Member States to not apply the Directive in respect of dividends from holdings that have been retained for a period of less than two years: ( 6 ) The receiving company in such a case is not to be viewed as a parent company within the meaning of the Directive. According to the case-law, the provision is intended to counteract abusive arrangements. These consist of holdings purchased solely for the purpose of profiting from the tax benefits provided for in the Directive, without any intention to retain them in the long term. ( 7 )

35. No more detailed information is to be found in the wording of the second indent of Article 3(2) of the Parent-Subsidiary Directive about how the Member States are actually to use the option given to them in this provision. In particular, it is not possible to conclude that the option can only be effectively exercised by rejecting the benefits of the Directive in their entirety at all times. As the Court of Justice has already held, there is instead a margin of discretion. ( 8 )

36. But, if a Member State can, in the case of dividend income from holdings that have not been retained for at least two years, refuse the exemption in its entirety, it must a fortiori be permissible if such income is essentially exempt under the provisions of Article 198(10) of the Income Tax Code, but is set off against interest expenses where these are claimed at the same time.

37. Contrary to the view of the Commission, it is irrelevant that Article 198(10) of the Income Tax Code was only enacted in 1996 — and therefore four years after the end of the transposition period for the Parent-Subsidiary Directive. The opportunity for a Member State to exercise the option in the second indent of Article 3(2) is not subject to any time constraint.

38. It is equally irrelevant that Article 198(10) of the Income Tax Code, as its origins make clear, was not conceived as a means of transposing the second indent of Article 3(2) of the Parent-Subsidiary Directive, but instead to prevent the use of a double deduction possibility through the purchase of holdings with outside finance. Solely relevant is the content of the rule that ultimately came into force. However, this is covered by the option in the second indent of Article 3(2).

39. Furthermore, there is no cause for concern with regard to the principle of legal certainty in seeing sufficient exercise of the option in the second indent of Article 3(2) of the Parent-Subsidiary Directive in Article 198(10) of the Income Tax Code. In particular, it is of no importance that the rule was not incorporated into Articles 202 and 204 of the Income Tax Code as part of the transposition of Article 4 of the Directive, but in relation to the rules on the deductibility of business expenses. This is because the formulation of Article 198(10) of the Income Tax Code is clear and specific, and its application is predictable for individuals. ( 9 )

40. On this basis, alone, it is must be concluded that the Parent-Subsidiary Directive does not preclude a rule of a Member State such as Article 198(10) of the Income Tax Code.

41. In the event that the Court of Justice does not follow these arguments and regards the Parent-Subsidiary Directive as applicable in the present case, I deal below in the alternative with Article 4(2) and Article 1(2) of the Directive.

2. Article 4(2) of the Parent-Subsidiary Directive

42. According to Argenta Spaarbank and the Commission, Article 4(2) of the Parent-Subsidiary Directive precludes a provision such as Article 198(10) of the Income Tax Code. This is because the application of this provision does not take into account whether the interest viewed as non-deductible is connected with the holdings for which exempted dividends were received. Article 4(2) of the Directive, however, empowers the Member States only to provide that ‘the costs relating to the holding in the subsidiary’ are not deductible.

43. Consequently, in order to assess this submission, it is necessary to interpret the concept of costs relating to the holding in the subsidiary within the meaning of Article 4(2) of the Parent-Subsidiary Directive. To this end, both the wording of the provision as well as the system and aims of the Directive must be taken into account. ( 10 )

44. The mere wording of Article 4(2) of the Parent-Subsidiary Directive indicates that only the claim of decreased profits for those costs can be refused where these are connected to a holding and are caused by it (‘costs relating to the holding’). ( 11 ) This includes, in particular, interest on capital borrowed for the purchase of a corresponding holding. A contrario, the Member States cannot provide that costs are not deductible where there is no such connection.

45. Such an interpretation is consistent with the scheme of Article 4 of the Parent-Subsidiary Directive. Article 4(2) represents an exception to Article 4(1), in accordance with which a Member State either does not tax profits which accrue to a resident parent company by virtue of its association with the subsidiary, or deducts from the tax due the tax paid by the latter on the profits. ( 12 ) Article 4(2) of the Directive should therefore be interpreted narrowly as an exception to the rule. ( 13 )

46. This is further confirmed by the objective of Article 4(2) of the Parent-Subsidiary Directive. As the Court of Justice has in fact already ruled, this provision permits the adoption of measures intended to prevent a parent company from being granted a double tax benefit. ( 14 ) Otherwise a company could receive exempted profits from holdings in accordance with the first indent of Article 4(1) of the Directive, and then claim, as decreasing profits, interest which it pays for loans received to finance the purchase of these holdings. However, it therefore follows that the refusal to deduct costs that have no causal connection to a holding is not covered by the aim of the exemption under Article 4(2) of the Directive and as a result is not permitted.

47. Finally, there is also the danger that a broad interpretation of the concept of costs relating to the holding in the subsidiary within the meaning of Article 4(2) of the Parent-Subsidiary Directive would undermine the practical effect of Article 4(1). Otherwise, in this case, it would be possible for the Member States in turn to thwart the avoidance of economic double taxation, intended by the latter provision, by not permitting the same amount of interest expenses to be deducted.

48. Article 4(2) of the Parent-Subsidiary Directive therefore precludes a legislative provision of a Member State, the application of which means that interest expenses generally cannot be claimed as decreasing profits up to the level of exempted dividend income from holdings, without account being taken of whether the interest is causally connected to these holdings.

3. Article 1(2) of the Parent-Subsidiary Directive

49. I share the view of Argenta Spaarbank, the Commission, and indeed Belgium itself, that neither is Article 198(10) of the Income Tax Code a provision for the prevention of tax evasion and abuse whose application is not precluded by Article 1(2) of the Parent-Subsidiary Directive.

50. Article 1(2) of the Parent-Subsidiary Directive creates a framework that imposes limits on the scope for action of Member States when, for reasons of preventing tax evasion and abuse, they refuse to grant the benefits provided under the Directive. It follows a contrario from the wording of the provision that the Directive does preclude such provisions that do not serve these objectives and go beyond what is necessary to achieve them. ( 15 )

51. Article 1(2) of the Parent-Subsidiary Directive thus reflects the general principle of EU law that any abuse of rights is prohibited. ( 16 ) EU law cannot be relied on for abusive or fraudulent ends. ( 17 )

52. Admittedly, as the Commission correctly states, a practice in which loans are obtained with the clear intention of financing the purchase of holdings that are then offloaded after a short period must indeed be viewed as abusive. The actual purpose of such an operation is to artificially reduce the tax base of the parent company. ( 18 ) The prevention of these kinds of operations is, however, precisely the purpose of the second indent of Article 3(2) and of Article 4(2) of the Parent-Subsidiary Directive, so from the outset it is unnecessary to rely on Article 1(2). ( 19 )

V – Conclusion

53. All things considered, I therefore propose that the request for a preliminary ruling from the Rechtbank van eerste aanleg Antwerpen (Court of First Instance, Antwerp, Belgium) be answered as follows: (1) Directive 90/435/EEC does not preclude a legislative provision of a Member State such as Article 198(10) of the Belgian Income Tax Code of 1992, according to which interest up to the level of an amount corresponding to the amount of the exempted dividends received by a company on shares that it has not held for an uninterrupted period of at least one year at the time of their transfer is not to be considered a business expense. In the alternative, should the Court not regard Article 198(10) of the Income Tax Code as being covered by the second indent of Article 3(2) of the directive: (2) Article 4(2) of Directive 90/435/EEC precludes a legislative provision of a Member State such as Article 198(10) of the Belgian Income Tax Code of 1992, according to which interest costs up to the level of exempted dividend income from holdings generally cannot be claimed as decreasing profits, without account being taken of whether the interest is causally connected to those holdings. Nor does such a provision constitute a provision of national law for the prevention of tax evasion and abuses whose application is not precluded under Article 1(2) of Directive 90/435.

( 1 ) Original language: German.

( 2 ) Council Directive of 23 July 1990 on the common system of taxation applicable to mergers, divisions, transfers of assets and exchanges of shares concerning companies of different Member States (OJ 1990 L 225, p. 6), since repealed and replaced by Council Directive 2011/96/EU of 30 November 2011 on the common system of taxation applicable in the case of parent companies and subsidiaries of different Member States (OJ 2011 L 345, p. 8).

( 3 ) Cf. judgments of 3 April 2008, Banque Fédérative du Crédit Mutuel (C‑27/07, EU:C:2008:195, paragraph 24, and of 12 February 2009, Cobelfret (C‑138/07, EU:C:2009:82, paragraph 29).

( 4 ) See only judgments of 16 July 1992, Asociación Española de Banca Privada and Others (C‑67/91, EU:C:1992:330, paragraph 25); of 13 March 2001, Cobelfret (C‑379/98, EU:C:2001:160, paragraph 38); and of 15 January 2013, Križan and Others (C‑416/10, EU:C:2013:8, paragraph 53). According to the case-law, there is a presumption of the relevance of the questions referred, cf. judgments of 7 September 1999, Beck and Bergdorf (C‑355/97, EU:C:1999:391, paragraph 22); of 16 June 2015, Gauweiler and Others (C‑62/14, EU:C:2015:400, paragraph 25); and of 21 December 2016, Vervloet and Others (C‑76/15, EU:C:2016:975, paragraph 57).

( 5 ) Cf. inter alia judgments of 15 December 1995, Bosman (C‑415/93, EU:C:1995:463, paragraph 61); of 14 October 2004, Omega (C‑36/02, EU:C:2004:614, paragraph 20); and of 15 October 2015, Balázs (C‑251/14, EU:C:2015:687, paragraph 26).

( 6 ) Cf. judgment of 18 June 2012, Amorim Energia (C‑38/11, EU:C:2012:358, paragraphs 31 to 33).

( 7 ) Cf. judgment of 17 October 1996, Denkavit and Others (C‑283/94, C‑291/94 and C‑292/94, EU:C:1996:387, paragraph 31).

( 8 ) Cf. in respect of the holding period and the applicable administrative procedure, judgment of 17 October 1996, Denkavit and Others (C‑283/94, C‑291/94 and C‑292/94, EU:C:1996:387, paragraph 39).

( 9 ) Cf. judgments of 15 February 1996, Duff and Others (C‑63/93, EU:C:1996:51, paragraph 20); of 10 September 2009, Plantanol (C‑201/08, EU:C:2009:539, paragraph 46); of 11 June 2015, Berlington Hungary and Others (C‑98/14, EU:C:2015:386, paragraph 77); and of 13 October 2016, Polkomtel (C‑231/15, EU:C:2016:769, paragraph 29).

( 10 ) Cf. judgments of 17 October 1996, Denkavit International and Others (C‑283/94, C‑291/94 and C‑292/94, EU:C:1996:387, paragraphs 24 and 26); of 8 June 2000, Epson Europe (C‑375/98, EU:C:2000:302, paragraphs 22 and 24); and of 3 April 2008, Banque Fédérative du Crédit Mutuel (C‑27/07, EU:C:2008:195, paragraph 22).

( 11 ) Cf. in this regard the previous judgment of 18 September 2003, Bosal (C‑168/01, EU:C:2003:479, paragraph 25 in conjunction with paragraph 8).

( 12 ) Cf. judgment of 12 February 2009, Cobelfret (C‑138/07, EU:C:2009:82, paragraph 33).

( 13 ) Cf. in this regard judgments of 17 October 1996, Denkavit International and Others (C‑283/94, C‑291/94 and C‑292/94, EU:C:1996:387, paragraph 27); and of 25 September 2003, Océ Van der Grinten (C‑58/01, EU:C:2003:495, paragraph 86).

( 14 ) Cf. judgment of 22 December 2008, Les Vergers du Vieux Tauves (C‑48/07, EU:C:2008:758, paragraph 42).

( 15 ) See point 22 of my Opinion in Eqiom and Enka (C‑6/16, EU:C:2017:34).

( 16 ) Cf. judgment of 5 July 2007, Kofoed (C‑321/05, EU:C:2007:408, paragraph 38 and the case-law cited).

( 17 ) Cf. judgments of 12 May 1998, Kefalasand Others (C‑367/96, EU:C:1998:222, paragraph 20); of 23 March 2000, Diamantis (C‑373/97, EU:C:2000:150, paragraph 33); of 21 February 2006, Halifax and Others (C‑255/02, EU:C:2006:121, paragraph 68); of 13 March 2014, SICES and Others (C‑155/13, EU:C:2014:145, paragraph 29); and of 28 July 2016, Kratzer (C‑423/15, EU:C:2016:604, paragraph 37).

( 18 ) Cf. also judgment of 17 October 1996, Denkavit International and Others (C‑283/94, C‑291/94 and C‑292/94, EU:C:1996:387, paragraph 31).

( 19 ) Cf. judgment of 17 October 1996, Denkavit International and Others (C–283/94, C–291/94 and C–292/94, EU:C:1996:387, paragraph 31).