Case C-379/05: Judgment of the Court (First Chamber) of 8 November 2007 (reference for a preliminary ruling from the Gerechtshof te Amsterdam — Netherlands) — Amurta S.G.P.S v Inspecteur van de Belastingdienst (Articles 56 EC to 58 EC — Free movement of capital — National tax legislation providing for exemption of shareholdings from corporation tax — Taxation of dividends — Withholding tax — Exemption from withholding tax — Application to companies receiving dividends with a seat or permanent establishment in the Member State granting the exemption and whose shareholdings benefit from exemption from corporation tax — Refusal to apply the exemption from withholding tax to dividends distributed to a recipient company not having a seat or a permanent establishment in that Member State)
Date: 2007-12-22
Institutions: Court of Justice
Subjects: Netherlands, corporation tax, free movement of capital, interpretation of the law, residence, tax exemption, tax on profits of self-employment

C 315/8

EN

Official Journal of the European Union

22.12.2007

Judgment of the Court (First Chamber) of 8 November
2007 (reference
a preliminary ruling from the
te Amsterdam — Netherlands) — Amurta
Gerechtshof

for

S.G.P.S v Inspecteur van de Belastingdienst

(Case C-379/05) (1)

a company established in that Member State to a company estab-
lished in another Member State, while exempting from that tax the
dividends paid to a company liable to corporation tax in the first
Member State or which has a permanent establishment in that
Member State which owns the shares in the company making the
distribution.

(Articles 56 EC to 58 EC — Free movement of capital —
National tax legislation providing for exemption of sharehold-
ings from corporation tax — Taxation of dividends — With-
holding tax — Exemption from withholding tax — Applica-
tion to companies receiving dividends with a seat or perma-
nent establishment in the Member State granting the exemp-
tion and whose shareholdings benefit from exemption from
corporation tax — Refusal to apply the exemption from with-
holding tax to dividends distributed to a recipient company
not having a seat or a permanent establishment in that
Member State)

(2007/C 315/12)

2. A Member State may not rely on the existence of a full tax credit
granted unilaterally by another Member State
to a recipient
company established in the latter Member State in order to escape
the obligation to prevent economic double taxation of dividends
resulting from the exercise of its power to tax in a situation where
the first Member State prevents economic double taxation of divi-
dends distributed to companies established in its territory. Where a
Member State relies on a convention for the avoidance of double
taxation concluded with another Member State,
the
national court to establish whether account should be taken, in the
main proceedings, of
to determine
that convention, and,
whether it enables the effects of the restriction on the free movement
of capital to be neutralised.

is for

if so,

it

Language of the case: Dutch

(1) OJ C 22, 28.1.2006.

Referring court

Gerechtshof te Amsterdam — Pays-Bas

Parties to the main proceedings

Applicant: Amurta S.G.P.S.

Defendant: Inspecteur van de Belastingdienst

Re:

Preliminary ruling — Gerechtshof te Amsterdam — Interpreta-
tion of Articles 56 EC, 57 EC and 58 EC — Corporation tax —
Exemption from tax in the case of dividends paid by a company
established in the national territory to a company also estab-
lished in that territory — Refusal to grant that exemption in the
case of dividends paid by a company established in the national
territory to a company established in the territory of another
Member State — Relevance of
in that other
Member State, of an equivalent exemption from taxation of divi-
dends in favour of the company established in that State

the existence,

Judgment of the Court (Grand Chamber) of 23 October
the
2007 — European Parliament v Commission of

European Communities

(Case C-403/05) (1)

(Action for annulment — Commission decision approving a
project relating to border security in the Philippines — Deci-
sion adopted on the basis of Regulation (EEC) No 443/92 —
Commission's implementing powers — Limits)

(2007/C 315/13)

Language of the case: French

Parties

Operative part of the judgment

Applicant: European Parliament (represented by: R. Passos, E.
Waldherr, K. Lindahl and G. Mazzini, Agents)

1. Articles 56 EC and 58 EC preclude legislation of a Member State
which, where the minimum threshold for the parent company's
shareholdings in the share capital of
in
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 is not
reached, provides for a withholding tax on dividends distributed by

the subsidiary set out

Defendant: Commission of the European Communities (repre-
sented by: C. Tufvesson and A. Bordes, Agents)

Intervener in support of the defendant: Kingdom of Spain (repre-
sented by J.M. Rodríguez Cárcamo, acting as Agent)