Keywords

Summary



Keywords

1. Preliminary rulings – Jurisdiction of the Court – Limits – Interpretation sought owing to the applicability, to purely internal situations, of provisions of a directive transposed into national law

(Art. 234 EC)

2. Approximation of laws – Common system of taxation applicable in the case of parent companies and subsidiaries of different Member States – Directive 90/435 – Scope – Parent company – Definition

(EC Treaty; Council Directive 90/435, Art. 3)

Summary

1. The Court’s jurisdiction extends, in principle, to questions concerning Community provisions in situations where the facts of the main proceedings are outside the scope of Community law but where those provisions have been rendered applicable by domestic law.

In that respect, even if, in the context of the preliminary ruling proceedings, the referring court does not explicitly state whether and to what extent the judgment of the Court would bind it with regard to the outcome of the main proceedings, the fact that that court has referred a question to the Court of Justice for a preliminary ruling and that it establishes, in that question, a connection between the national legislation at issue and Community legislation leads to the conclusion that that judgment will bind the national court. Since the explanations supplied in that respect to the Court do not contain objective information demonstrating clearly that that would not be the case, the argument that the interpretation of Community law requested is only one of the factors to be taken into consideration for the purpose of construing domestic law and that, therefore, the judgment of the Court would not bind the referring court, cannot bring into question the Court’s jurisdiction.

Furthermore, the mere fact that the interpretation to be given by the referring court to a provision of national law transposing a directive does not derive exclusively from the judgment that the Court will be required to deliver does not preclude its jurisdiction to rule on the question referred. In the context of the allocation of judicial functions between national courts and the Court of Justice under Article 234 EC, the latter cannot, in its reply to the national court, take account of the general scheme of the provisions of domestic law which, while referring to Community law, define the extent of that reference. Therefore, consideration of the limits which the national legislature may have placed on the application of Community law to purely internal situations is a matter for domestic law and consequently falls within the exclusive jurisdiction of the courts of the Member State. On the other hand, with regard to Community law, the referring court may not diverge, within the limits of the reference of domestic law back to Community law, from the interpretation provided by the Court.

(see paras 21, 23, 25-27)

2. The concept of a holding in the capital of a company of another Member State within the meaning of Article 3 of Directive 90/435 on the common system of taxation applicable in the case of parent companies and subsidiaries of different Member States does not include the holding of shares in usufruct. Article 3(1)(a) of Directive 90/435 requires, for the status of parent company to be attributed to a company, that it has a holding in the capital of another company. According to Article 3(1)(b) of that directive, ‘subsidiary’ is to mean the company the capital of which includes that holding. From this it follows that the concept of a ‘holding in the capital’ within the meaning of Article 3 refers back to the legal relationship between the parent company and the subsidiary. It thus follows from the wording of Article 3 that the latter does not provide for the situation in which the parent company transfers to a third party, in this case to a usufructuary, a legal relationship with the subsidiary under which that third party might also be regarded as a parent company.

However, in compliance with the freedoms of movement guaranteed by the Treaty, applicable to cross-border situations, when a Member State, in order to avoid double taxation of dividends received, exempts from tax both the dividends which a resident company receives from another resident company in which it holds shares with full title and those which a resident company receives from another resident company in which it holds shares in usufruct, that Member State must apply, for the purpose of exempting dividends received, the same treatment to dividends received from a company established in another Member State by a resident company holding shares with full title as that which it applies to such dividends received by a resident company which holds shares in usufruct.

(see paras 38, 49, operative part)