Case C-284/06: Judgment of the Court (Fourth Chamber) of 26 June 2008 (reference for a preliminary ruling from the Bundesfinanzhof (Germany)) — Finanzamt Hamburg-Am Tierpark v Burda GmbH, formerly Burda Verlagsbeteiligungen GmbH (Tax legislation — Freedom of establishment — Directive 90/435/CEE — Corporation tax — Common system of taxation applicable in the case of parent companies and subsidiaries of different Member States — Company with a share capital — Distribution of revenue and of increases in share capital — Withholding tax — Tax credit — Treatment of resident shareholders and non-resident shareholders)
Date: 2008-06-26
Institutions: Court of Justice
Subjects: company with share capital, corporation tax, interpretation of the law, parent company, subsidiary, tax on profits of self-employment, tax system

C 209/4

EN

Official Journal of the European Union

15.8.2008

Judgment of the Court (Fourth Chamber) of 26 June 2008
(reference for a preliminary ruling from the Bundes-
finanzhof (Germany)) — Finanzamt Hamburg-Am Tierpark
formerly Burda Verlagsbeteiligungen
v Burda GmbH,

GmbH

(Case C-284/06) (1)

(Tax legislation — Freedom of establishment — Directive
90/435/CEE — Corporation tax — Common system of taxa-
tion applicable in the case of parent companies and subsidi-
aries of different Member States — Company with a share
capital — Distribution of revenue and of increases in share
capital — Withholding tax — Tax credit — Treatment of resi-
dent shareholders and non-resident shareholders)

(2008/C 209/05)

Language of the case: German

Referring court

Bundesfinanzhof

Parties to the main proceedings

Applicant: Finanzamt Hamburg-Am Tierpark

Defendant: Burda GmbH, formerly Burda Verlagsbeteiligungen
GmbH

Re:

for

a preliminary

Reference
ruling — Bundesfinanzhof
(Germany) — Interpretation of Article 5(1) of Council Directive
90/435/EEC of 23 July 1990 on the common system of taxa-
tion applicable in the case of parent companies and subsidiaries
of different Member States (OJ 1990 L 225, p. 6), now Article 5
in the version as amended by Council Directive 2003/123/EC of
22 December 2003 amending Directive 90/435/EEC on the
common system of taxation applicable in the case of parent
companies and subsidiaries of different Member States (OJ 2004
law
L 7, p. 41) — Concept of withholding tax — National
providing that, where profits are distributed by a subsidiary to
its parent company, income and asset increases of the capital
company are to be taxed, even though they would not be taxed
if
they remained with the subsidiary — Interpretation of
Articles 43 EC, 56 EC and 58 EC — National law providing for
set-off arrangements for the distribution of profits by a capital
company using its own capital, resulting in taxation even where
dividends are distributed to non-resident shareholders which are
unable to set off the corporation tax against their own tax liabi-
lity

Operative part of the judgment

increases of

income and asset

provides for the taxation of
the
subsidiary which would not have been taxed if they had remained
with the subsidiary and had not been distributed to the parent
company does not constitute 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.

2. Article 52 of the Treaty (now, after amendment, Article 43 EC)
must be interpreted as not precluding the application of a national
measure, such as Paragraph 28(4) of the Law on Corporation Tax
1996 (Körperschaftsteuergesetz 1996), in the version applicable to
the facts of the main proceedings, under which the taxation of
profits distributed by a subsidiary resident in a Member State to its
parent company is subject to the same corrective mechanism regard-
less of whether the parent company is resident in the same Member
State or in another Member State even though — unlike a resident
parent company — a non-resident parent company is not granted
a tax credit by the Member State in which the subsidiary is resi-
dent.

(1) OJ C 237, 30.9.2006.

Judgment of the Court (First Chamber) of 19 June 2008 —
Commission of the European Communities v Grand Duchy
of Luxembourg

(Case C-319/06) (1)

(Failure of a Member State to fulfil obligations — Posting of
workers — Freedom to provide services — Directive 96/71/EC
— Public policy provisions — Weekly rest days — Obligation
to produce documents relating to a posting on demand by the
national authorities — Obligation to designate an ad hoc
agent residing in Luxembourg to retain all the documents
necessary for monitoring purposes)

(2008/C 209/06)

Language of the case: French

Parties

Applicant: Commission of the European Communities (repre-
sented by: J. Enegren and G. Rozet, acting as Agents)

1. A provision of national

in relation to cases where
law which,
profits are distributed by a subsidiary to its parent company,

Defendant(s): Grand Duchy of Luxembourg (represented by: C.
Schiltz, acting as Agent)