Judgment of the Court (Fifth Chamber) of 4 October 2001 in Case C-294/99 (reference for a preliminary ruling from the Diikitiko Protodikio Athinon): Athinaiki Zithopiia AE v Elliniko Dimosio (Greek State) (Taxation of company profits — Parent companies and subsidiaries — Directive 90/435/EEC — Concept of withholding tax)
Date: 2001-11-10
Institutions: Court of Justice
Subjects: deduction at source, interpretation of the law, parent company, profit, subsidiary, taxable income

10.11.2001

EN

Official Journal of the European Communities

C 317/3

(EEC) No 2913/92 of 12 October 1992 establishing the
Community Customs Code (OJ 1992 L 302, p. 1), and of
Article 905(1) of Commission Regulation (EEC) No 2454/93
of 2 July 1993 laying down provisions for the implementation
of Council Regulation (EEC) No 2913/92 (OJ 1993 L 253,
p. 1), as amended by Commission Regulation (EC) No 1676/96
of 30 July 1996 (OJ 1996 L 218, p. 1) — the Court
(Sixth Chamber) composed of: C. Gulmann, President of
the Chamber,
J.-P. Puissochet, R. Schintgen (Rapporteur),
F. Macken and N. Colneric, Judges; F. G. Jacobs, Advocate
General; H. A. Rühl, Principal Administrator, for the Registrar,
gave a judgment on 27 September 2001, the operative part of
which is as follows:

1. Article 236(1) of Council Regulation (EEC) No 2913/92 of
12 October 1992 establishing the Community Customs Code
does not permit the repayment of import duties where, after a
complete customs declaration has been accepted by the customs
authorities and the goods covered by it have been released into
free circulation, the declarant presents a certificate of authenticity
by virtue of which the goods would, supposing the certificate to
have been produced with the goods, have been eligible for
favourable tariff treatment.

2.

remission of

The fact that repayment or remission of duties pursuant to
Article 236(1) of Regulation No 2913/92 is excluded because
one of the legal conditions laid down for that repayment or
remission has not been satisfied does not, of itself, exclude
those duties on the basis of
repayment or
Articles
and
Article 905(1) of Commission Regulation (EEC) No 2454/93
of 2 July 1993 laying down provisions for the implementation
of Regulation (EEC) No 2913/92, as amended by Commission
Regulation (EC) No 1676/96 of 30 July 1996, provided
however that the legal conditions for the application of those
provisions are satisfied.

of Regulation No 2913/92

239(1)

Factors ‘which might constitute a special situation resulting
from circumstances in which no deception or obvious negligence
may be attributed to the person concerned’ for the purposes of
Article 905(1) of Regulation No 2454/93, as amended by
Regulation No 1676/96, exist where, having regard to the
objective of
fairness underlying Article 239 of Regulation
in an
No 2913/92,
exceptional situation as compared with other operators engaged
in the same business are found to exist. It is for the national
court to assess, on the basis of that criterion, whether factors
which might constitute such a special situation do exist,
necessitating examination of the file by the Commission.

factors liable to place the applicant

JUDGMENT OF THE COURT

(Fifth Chamber)

of 4 October 2001

in Case C-294/99 (reference for a preliminary ruling from
the Diikitiko Protodikio Athinon): Athinaiki Zithopiia AE
v Elliniko Dimosio (Greek State) (1)

(Taxation of company profits — Parent companies and
subsidiaries — Directive 90/435/EEC — Concept of with-
holding tax)

(2001/C 317/05)

(Language of the case: Greek)

(Provisional translation; the definitive translation will be published
in the European Court Reports)

In Case C-294/99: reference to the Court under Article 234
EC from the the Diikitiko Protodikio Athinon (Administrative
Court of First Instance, Athens), Greece, for a preliminary
ruling in the proceedings pending before that court between
Athinaiki Zithopiia AE and Elliniko Dimosio (Greek State) —
on the interpretation of Article 5(1) of Council Directive
90/435/EEC of 23 July 1990 on the common system of
taxation applicable in the case of parent companies and
subsidiaries of different Member States (OJ 1990 L 225, p. 6)
— the Court (Fifth Chamber), composed of: A. La Pergola,
(Rapporteur),
the Chamber, M. Wathelet
President of
D.A.O. Edward, P.
Judges; S. Alber,
Jann and L. Sevo´ n,
Advocate General; L. Hewlett, Administrator, for the Registrar,
has given a judgment on 4 October 2001, in which it has
ruled:

There is a withholding tax, within the meaning of Article 5(1) of
Council Directive 90/435/EEC of 23 July 1990 on the common
system of taxation applicable in the case of parent companies and
subsidiaries of different Member States, where national legislation
provides that, in the event of distribution of profits by a subsidiary (a
public limited company or equivalent company) to its parent company,
in order to determine the taxable profits of the subsidiary its total net
profits, including income which has been subject to special taxation
entailing extinction of tax liability and non-taxable income, must be
reincorporated into the basic taxable amount, when income falling
within those two categories would not be taxable on the basis of the
national legislation if they remained with the subsidiary and were not
distributed to the parent company.

(1) OJ C 265 of 18.9.1999.

(1) OJ C 314 of 30.10.1999.