CELEX: 62003CC0253
Language: en
Date: 2005-04-14
Title: Opinion of Mr Advocate General Léger delivered on 14 April 2005. # CLT-UFA SA v Finanzamt Köln-West. # Reference for a preliminary ruling: Bundesfinanzhof - Germany. # Freedom of establishment - Tax legislation - Tax on company profits. # Case C-253/03.

OPINION OF ADVOCATE GENERAL
      LÉGER
      delivered on 14 April 2005 (1)
      
      Case C-253/03
      CLT-UFA SA
      v
      Finanzamt Köln-West
      (Reference for a preliminary ruling from the Bundesfinanzhof (Germany))
      (Freedom of establishment – Tax legislation – Taxes on company profits – Final taxation of the profits of a branch of a non-resident company – National legislation which excludes the permanent establishments of non-resident companies from the possibility of reducing
         the rate of tax on their profits – Not permissible)
      1.        The question of the compatibility with Community law of national tax legislation which subjects a company established in a
         Member State to different rules according to whether it has opened a secondary establishment in another Member State in the
         form of a subsidiary, which has its own legal personality, or a place of business such as a branch, has already given rise
         to a number of references for preliminary rulings and continues to raise complex questions.
      
      2.        In the field of direct company taxation, such differences in the applicable rules have to do mainly either with the transnational
         offsetting of losses (2) or with the grant of a tax concession in the taxation of profits. This case concerns the second category of differences.
         
      
      3.        It arises from the dispute between the company CLT-UFA SA (3) and the Finanzamt Köln-West (District Tax Office, Cologne-West) (Germany) (4) concerning the taxation of that company’s profits for the year 1994. CLT-UFA is a société anonyme (public limited company) which has its seat and business management in the Grand Duchy of Luxembourg and which carried on
         its activities in Germany in the year 1994 through a permanent establishment, which does not have its own legal personality,
         in the form of a branch. The company was taxed by the German authorities on the profits made by its branch in Germany and
         that taxation was set at a rate of 42% of those profits, in accordance with the national legislation in force. 
      
      4.        CLT-UFA disputes that rate of tax on the ground that, if it had carried on its activities in Germany in the financial year
         at issue through a subsidiary and if that subsidiary had transferred its profits in full to CLT-UFA, the rate would have been
         reduced to 33.5% or 30%. 
      
      5.        The Bundesfinanzhof (Federal Finance Court) (Germany) is asking whether such rules are compatible with Articles 52  (5) and 58  (6) of the EC Treaty and, if appropriate, whether the rate of tax on the profits made by the appellant in Germany must be reduced
         to 30%. 
      
      I –  Community law
      6.        The field of direct taxation, which covers all charges to tax levied ‘directly’ on taxpayers, such as personal income tax
         and corporation tax, (7) continues to fall within the competence of the Member States. Under Article 220 of the EC Treaty, (8) it is for the Member States, ‘so far as is necessary’, to enter into the negotiations necessary to avoid the double taxation
         of their nationals within the Community. The EC Treaty does not therefore confer any powers on the Community legislature in
         matters of direct taxation, with the exception of Article 100 of the EC Treaty, (9) which permits the Council, acting unanimously, to adopt directives which seek to approximate national laws in the fields
         which directly affect the establishment or functioning of the common market. 
      
      7.        Thus, as regards the taxation of undertakings, despite the significant efforts made by the Commission of the European Communities
         to achieve a minimum degree of harmonisation among the national tax systems, (10) the Member States retain the freedom to determine the basis of assessment and rate of tax applied to company profits. 
      
      8.        However, that power is not without limits. It is settled case-law that the Member States must exercise their powers in the
         field of direct taxation in accordance with Community law. (11) It follows that the rules by which the Member States determine how company profits are to be taxed and how the double taxation
         of those profits is to be avoided must not infringe the fundamental freedoms, such as the freedom of establishment enshrined
         in Articles 52 and 58 of the Treaty. 
      
      9.        Article 52 of the Treaty, which is commonly said to ‘constitute one of the fundamental provisions of Community law’ and is
         directly applicable in the Member States, (12) provides that the freedom of establishment of the nationals of a Member State in the territory of another Member State is
         to include the right to take up and pursue activities as self-employed persons and to set up and manage undertakings under
         the conditions laid down for its own nationals by the law of the country where such establishment is effected. Under the second
         sentence of the first paragraph of that article, elimination of the restrictions on the freedom of establishment is also to
         apply to restrictions on the setting-up of agencies, branches or subsidiaries by nationals of any Member State established
         in the territory of another Member State. 
      
      10.      For its part, Article 58 of the Treaty extends to companies or firms formed in accordance with the law of a Member State,
         having their registered office within the Community and pursuing a profit-making aim, the rights conferred by Article 52 of
         the Treaty on natural persons. The Court has held that, in this context, the corporate seat performs a function similar to
         that of the nationality of natural persons in that it serves as the connecting factor with the legal system of a particular
         State. (13)
      
      11.      The purpose of the freedom of establishment guaranteed by the Treaty is therefore to allow companies having their seat in
         another Member State to carry on their activities in the State of establishment in accordance with the rules applicable in
         that State to national companies. Based on the same principles as the provisions of the Treaty on the freedom of movement
         for workers, (14) the freedom of establishment prohibits, in principle, all overt discrimination by reason of nationality or, in the case of
         a company, the location of its seat in another Member State. (15) It also prohibits indirect or covert forms of discrimination, that is to say rules which, by the application of criteria
         of differentiation other than those of nationality or the corporate seat, lead in fact to the same results. (16)
      
      12.      The freedom of establishment also precludes measures in force in the host State which, although applicable without distinction
         to all national and foreign undertakings, prohibit, impede or render less attractive the exercise of that freedom, (17) as well as measures by which the State of origin hinders the establishment in another Member State of a company incorporated
         under its legislation. (18)
      
      13.      Moreover, the second sentence of the first paragraph of Article 52 of the Treaty, in conjunction with Article 58 of the Treaty,
         grants companies the freedom to choose the most appropriate legal form in which to pursue their activities in another Member
         State, be it an agency, a branch or a subsidiary. (19)
      
      14.      Finally, reference must be made to Council Directive 90/435/EEC  (20) which, although it does not cover transfers of profits from a branch to a parent company having its seat in another Member
         State, none the less has a bearing on the answer to be given to the questions submitted by the referring court. That directive
         introduced common rules designed, inter alia, to eliminate the double taxation of income distributed by subsidiaries to parent
         companies having their seat in another Member State. It essentially provides that, in order to prevent those profits from
         being taxed a second time when they are distributed to the parent company, the State of the parent company must exempt them
         from tax or, if it taxes them, allow the parent company to offset against its own tax liability the fraction of the tax paid
         by the subsidiary on the profits distributed. The directive is not to affect the application of domestic or agreement-based
         provisions designed to eliminate or lessen economic double taxation of dividends. 
      
      II –  National law 
      15.      The German tax legislation which was applicable in the financial year at issue is described by the referring court as follows.
         
      
      16.      With regard, first of all, to the taxation in Germany of profits made in that Member State by a branch of a company having
         its seat in another Member State, national law provided that foreign companies which have neither their central administration
         nor their seat in Germany are subject to corporation tax in that State only to a limited extent, that is to say only on the
         income generated in that State. (21) Income which may be taxed in Germany in this way includes profits made in that State by a permanent establishment, such as
         a branch. 
      
      17.      In addition, under a convention concluded between the Federal Republic of Germany and the Grand Duchy of Luxembourg, the profits
         of a company established in Luxembourg can be taxed in Germany only on the income generated by a permanent establishment of
         that company which is located in the territory of the latter State. The profits of that permanent establishment are calculated
         by attributing to it the profits which it would have made if it had carried on the same or similar activities under the same
         or similar conditions as an independent undertaking. (22)
      
      18.      The rate of corporation tax applicable to the profits of a permanent establishment is set at 42% of those profits. (23)
      
      19.      With regard to the taxation in Germany of profits made in that State by a subsidiary of a non-resident company, because their
         seat or business management is located in Germany, subsidiaries are subject in that State to unlimited liability to corporation
         tax. (24) If those profits are retained, the rate of corporation tax is set at 45% of the profits. 
      
      20.      If those profits are distributed by a subsidiary to its parent company up to 30 June 1996, without having previously been
         retained, the tax payable by the subsidiary on those profits is set at or reduced to 30% of those profits. The parent company
         is also taxed at a rate of 5% of the amount received, which brings the overall tax charged on the fully-distributed profits
         made by the subsidiary to 33.5% of the taxable income. (25)
      
      21.      If those profits are distributed to the parent company after 30 June 1996, the rate of tax is reduced to 30% and the parent
         company is not liable to additional taxation. (26)
      
      22.      Amendments were made to the German legislation subsequently to the facts of the main proceedings. With effect from the 2001
         financial year, the tax on company profits made in Germany has been set at the single rate of 25%, irrespective of whether
         the company is subject to limited or unlimited tax liability in that State. (27)
      
      III –  The questions referred 
      23.      CLT-UFA does not dispute the assessment of the amount of the profits made by its branch in the financial year at issue, but
         only the 42% rate of tax. Its action challenging that rate having been dismissed by the Finanzgericht (District Tax Court),
         the company brought before the Bundesfinanzhof an application for review on a point of law by which it seeks an order setting
         aside the judgment of the Finanzgericht and amending the contested tax assessment by reducing the rate of tax to 30%. 
      
      24.      In its order for reference, the Bundesfinanzhof states that, because its seat is in Luxembourg, the appellant is treated differently
         and less favourably with regard to profits made by its branch in Germany than would have been the case if it had carried on
         its activity there in the legal form of a company having its seat in that State, since profits made by a subsidiary in Germany
         in the financial year at issue, if distributed in full to the appellant, would have been subject to a rate of tax not of 42%
         but of 33.5% at most.
      
      25.      The Bundesfinanzhof further states that it doubts whether that difference in the applicable rates of tax can be justified.
         
      
      26.      In particular, it cannot be justified by reference to the purpose and scheme of the German procedure for offsetting corporation
         tax, as the Finanzamt does. The purpose of that procedure is to avoid the multi-stage taxation of the profits of capital companies
         subject in Germany to unlimited tax liability which would take place if the company’s profits were taxed both through the
         company itself and through the shareholders, whether companies or individuals, when distributed to them. The offsetting procedure
         therefore allows the tax levied on the company to be set against the tax debt of beneficiaries subject to unlimited liability
         either to corporation tax or to income tax. The tax on profits is therefore reduced to a rate of 30% and, unlike the tax on
         profits made by a permanent establishment, does not constitute final taxation. 
      
      27.      The Bundesfinanzhof points out, however, that the 30% rate of tax does not apply solely to profits distributed to shareholders
         subject in Germany to unlimited tax liability, but also to profits distributed by a German subsidiary to a parent company
         having its seat in another Member State, which means that, contrary to the contention of the Finanzamt, the rate of tax applicable
         where profits are distributed and the rate of tax charged on dividends through shareholders are not the same. 
      
      28.      None the less, the Bundesfinanzhof doubts whether the case-law of the Court can provide immediate answers to the legal questions
         raised by CLT-UFA’s appeal. It points out that, in Royal Bank of Scotland, cited above, the Greek tax system, which was declared incompatible with Articles 52 and 58 of the Treaty, provided for the
         application of a 40% rate of tax to the taxable income of foreign companies, but a rate of only 35% to the income of national
         companies. However, in this case, the permanent establishments of companies having their seat in another Member State will
         be at a disadvantage only if it is assumed, by way of comparison, that, for a German company, profit distribution is the norm,
         since, if that company retains its profits, the rate of tax is 45%. 
      
      29.      The Bundesfinanzhof then states that, since the appellant was able to dispose of the profits made by its subsidiary from the
         end of the 1994 financial year, the view can be taken that the appellant was in an objectively comparable situation to that
         of a parent company having its seat in another Member State which has had distributed to it by its German subsidiary all the
         profits the latter has made. In order to eliminate any infringement of Community law committed through the application of
         the tax system at issue, it would therefore be sufficient to reduce the rate of tax applied to the appellant to 33.5%. 
      
      30.      In the light of these considerations, the Bundesfinanzhof decided to stay proceedings and refer the following questions to
         the Court for a preliminary ruling: 
      
      ‘1)      Is Article 52 in conjunction with Article 58 of the EC Treaty to be interpreted as meaning that charging the profits made
         in 1994 by a capital company from another Member State through a branch in Germany to German corporation tax at a rate of
         42% (the “place of business tax rate”) constitutes an infringement of the right to freedom of establishment, given that: 
      
      –        the profits would have been charged to German corporation tax at the rate of only 33.5% if they had been made by a company
         subject to unlimited corporation tax in Germany which was a subsidiary of a capital company from another Member State and
         had distributed all the profits to its parent by the end of 30 June 1996, 
      
      –        [and that] the profits would initially have been charged to German corporation tax at the rate of 45% if the subsidiary had
         retained them until the end of 30 June 1996, but the liability to corporation tax would have been reduced retrospectively
         to 30% if the profits had been distributed in full after 30 June 1996? 
      
      2)      If the place of business tax rate infringes Article 52 in conjunction with Article 58 of the EC Treaty, is it necessary to
         reduce it to 30% for the year in dispute in order to cure the infringement?’ 
      
      IV –  Analysis 
      A –    The first question referred 
      31.      By its first question, the Bundesfinanzhof essentially asks whether Articles 52 and 58 of the Treaty are to be interpreted
         as precluding the tax legislation of a Member State under which profits made in that State by the permanent establishment
         of a company having its seat in another Member State is subject to a fixed rate of corporation tax of 42%, with no possibility
         of reduction, whereas, if those profits are made by a company having its seat there, such as a subsidiary, and are distributed
         in full by that subsidiary to a parent company having its seat in another Member State, they are taxed at a rate of 33.5%
         if distributed up to 30 June 1996 and at a rate of 30% if distributed after 30 June 1996. 
      
      32.      The German Government and the Finanzamt contend that the rules at issue do not contravene Articles 52 and 58 of the Treaty
         and that the Court should answer this question in the negative. The main points of their argument can be summarised as follows.
         
      
      1.      Arguments of the German Government and the Finanzamt
      33.      The German Government and the Finanzamt contend that the difference in treatment challenged by CLT-UFA is not contrary to
         the rules on the freedom of establishment because its situation is not comparable to that of a German subsidiary which distributes
         its profits to a parent company having its seat in another Member State. 
      
      34.      They submit, first of all, that the transfer of profits by a branch to its parent company is not comparable to a distribution
         of all the profits of a subsidiary to its own parent company. Whereas, in the case of a branch, such a transfer is a purely
         internal operation within the same company, the effect of the distribution by a subsidiary of its profits to its parent company
         is that those profits no longer form part of the subsidiary’s assets. 
      
      35.      They further state that, unlike the tax systems at issue in Commission v France, Royal Bank of Scotland and Saint-Gobain ZN, cited above, the difference in treatment provided for in the German tax system and challenged by CLT-UFA is based not on
         where the companies concerned have their seat but on whether the profits are distributed. If the profits are retained, the
         rate of tax is 45%; this rate is reduced to 33.5% or 30% only if the profits are distributed. 
      
      36.      Thus, under the German legislation applicable in 1994, if the parent company and the permanent establishment operated by it
         both have their seat in Germany, the parent company is liable to tax in that State. The rate of tax on the profits, including
         those made by the company’s permanent establishment, depends on how they are used. If the profits are retained, the rate is
         45%, whereas, if they are distributed to shareholders, the rate is reduced to 30%. If they are part retained and part distributed,
         the rate of tax is determined according to the proportions of the profits retained and distributed respectively. 
      
      37.      The German Government and the Finanzamt point out that that reduction in the rate of tax on profits is linked to the procedure
         for offsetting tax, which is intended to avoid the double taxation of profits which would occur if a company’s profits were
         charged to corporation tax and then taxed through the shareholders when distributed to them. In their view, such a system
         can be applied only to companies whose profits are capable of giving rise to income taxable through those who receive it.
         The final rate of tax of 42% does not therefore apply only to foreign companies operating a permanent establishment in Germany,
         but also to national companies whose income cannot be taxed because of the way it is used. (28)
      
      38.      The scheme of those rules does not therefore allow the transfer of profits from a branch to its foreign parent company to
         be regarded as a distribution of profits, since the profits remain at the disposal of that company. The German Government
         concedes that, under that system, account should logically be taken of how the profits are used by the non-resident parent
         company. It states, however, that that option was not taken up because, on the one hand, that company falls within the tax
         jurisdiction of the Member State in which the company has its seat and, on the other hand, that option would pose practical
         problems which neither the company concerned nor the tax administration would readily be able to overcome. That is why the
         German legislature decided to subject such companies to the same rules as national companies whose assessment to tax is likewise
         not determined by the distribution of their income. 
      
      39.      Finally, the German Government contends that the taxation of profits made in Germany by the permanent establishment of a company
         having its seat in another Member State at a rate of 30% would not be justified under the German legislation, since such a
         rate would apply irrespective of whether or not the parent company distributed its profits and could thus result in branches
         being treated more favourably. Furthermore, it is not established that German subsidiaries always distribute their profits
         in full to their non-resident parent companies. 
      
      40.      The Finanzamt adds that, under the rules in force at the material time, the tax on the profits distributed by a subsidiary
         to its parent company is to be increased by a final levy on non-deductible business expenses. It provides a specimen calculation
         showing that the total levy on profits distributed to a parent company may rise from 33.5% to 35.59%. 
      
      2.      Assessment
      41.      I do not concur with the arguments put forward by the German Government and the Finanzamt. Like the Commission and CLT-UFA,
         I take the view that Articles 52 and 58 of the Treaty preclude rules such as those at issue on the following grounds, which
         echo the method of analysis usually followed by the Court in such matters. (29) Firstly, I take the view that the tax system at issue has the effect of treating companies whose seat is located in another
         Member State unfavourably and limits the choice available to those companies as to the legal form of their secondary establishment
         in Germany. Secondly, the situations to which this difference in treatment applies may, in my opinion, be regarded as being
         objectively comparable. Finally, I do not consider that restriction on the freedom of establishment to be justified. 
      
      (a)      The existence of unfavourable treatment of companies whose seat is located in another Member State and of a limitation of
         the choice available to those companies as to the legal form of their secondary establishment in Germany
      
      42.      As stated above, freedom of establishment confers on the companies of a Member State the right to choose freely the legal
         form of their secondary establishment in another Member State. It is necessary to set out the scope of that right as determined
         by case-law. 
      
      43.      In Commission v France, cited above, concerning a tax credit, known as an ‘avoir fiscal’, which was intended to avoid the double taxation of company
         profits, first in the form of corporation tax, and then through tax levied on beneficiaries of dividends, and which was available
         only to companies having their seat in France or in the territory of States having concluded with France conventions for the
         avoidance of double taxation, the Court was faced with the argument advanced by the French Government that the difference
         in treatment did not contravene the freedom of establishment of non-resident companies, because they could choose to carry
         on their activities in France through a subsidiary, rather than a branch, in order to benefit from that tax credit. 
      
      44.      The Court rejected that argument on the ground that the freedom to choose the appropriate legal form for the pursuit of activities
         in another Member State, conferred on economic operators by the second sentence of the first paragraph of Article 52 of the
         Treaty, constitutes a freedom in itself and must not be limited by discriminatory tax provisions. (30)
      
      45.      In Saint-Gobain ZN, cited above, the Court set out the conditions in which that freedom of choice must be regarded as being restricted in a
         manner contrary to the Treaty. The tax system at issue in that case denied a non-resident capital company which operated a
         branch in Germany through which it held interests in companies established in other States and received dividends arising
         from those interests the benefit of certain tax concessions relating to the taxation of those interests or those dividends.
         (31) Under that tax system, those concessions were available only to companies subject in Germany to unlimited tax liability,
         either under national legislation or under bilateral conventions concluded with non-member countries. The companies subject
         in Germany to unlimited tax liability were defined as being those having their seat or business management in that State,
         including the German subsidiaries of foreign companies. 
      
      46.      The Court held that the refusal to grant the tax concessions at issue to the permanent establishments located in Germany of
         non-resident companies made it ‘less attractive’ for those companies to have intercorporate holdings through German branches,
         since those concessions were capable of benefiting only German subsidiaries, ‘which thus restricts the freedom to choose the
         most appropriate legal form for the pursuit of activities in another Member State, which the second sentence of the first
         paragraph of Article 52 of the Treaty expressly confers on economic operators’. (32) It concluded from this that ‘[t]he difference in treatment to which branches of non-resident companies are subject in comparison
         with resident companies as well as the restriction of the freedom to choose the form of secondary establishment must be regarded
         as constituting a single composite infringement of Articles 52 and 58 of the Treaty’. (33)
      
      47.      That reasoning confirms, first of all, that the freedom to choose the legal form of a secondary establishment is an integral
         part of the rights conferred by Articles 52 and 58 of the Treaty, and that those articles prohibit any restriction on that
         freedom resulting from treatment that is contrary to Article 52 of the Treaty because it entails overt discrimination based
         on the location of the corporate seat. The view can also be taken, in the light of the phrase to that effect, that the rules
         at issue make it ‘less attractive’ for companies to create German branches, that those articles prohibit not only limitations
         on that freedom of choice which result from overt discrimination, but also those which follow from the other forms of restriction
         contrary to Article 52 of the Treaty, that is to say rules which are indirectly discriminatory, rules which make it less attractive
         to exercise the freedom of establishment or rules which hinder the establishment of a national company in another Member State.
         
      
      48.      Furthermore, the reasoning reproduced above shows that, where the branch of a non-resident company does not benefit from the
         same advantages as the branch of a foreign company, the freedom to choose the legal form of a secondary establishment, conferred
         by Articles 52 and 58 of the Treaty, is infringed. Indeed, a contrario, it shows that that freedom of choice requires that
         the branch of a company having its seat in another Member State should benefit in the host State from the same advantages
         as the subsidiaries of companies whose seat is likewise in another Member State.
      
      49.      Moreover, in accordance with the judgment in Saint-Gobain ZN, cited above, the scope of such equal treatment is not limited to the rights conferred by the law of the host State, but
         extends to the advantages provided for in conventions concluded by the host State with non-member countries. 
      
      50.      The tax system at issue in these proceedings must be considered in the light of those considerations. 
      51.      In these proceedings, the description of the German tax system provided by the referring court shows that, although profits
         made in Germany by a subsidiary may, if distributed to a non-resident parent company, benefit from a reduction in the overall
         rate of tax applied to them from 45% to 33.5%, or even 30% if distributed after 30 June 1996, no such possibility exists for
         non-resident companies which carry on their activities in Germany through a permanent establishment, such as a branch. It
         is established that profits made in Germany through a branch are taxed at a rate of 42% and that that rate is final, with
         the result that it applies irrespective of whether those profits are transferred in full or in part from the branch to the
         parent company. 
      
      52.      In addition, even though, in certain situations such as that described by the Finanzamt, the profits of a German subsidiary
         which are distributed to its non-resident parent company may be the subject of a higher rate of tax than that applied to equivalent
         profits made by the branch of a foreign parent company, it would seem to be beyond serious dispute that a reduction in the
         rate of tax to 33.5% or 30% must, as a general rule, result in more favourable treatment than taxation at the final rate of
         42%. 
      
      53.      Finally, the disadvantage caused by that difference in the rate of tax on profits made in Germany cannot be eliminated by
         the convention concluded between the Grand Duchy of Luxembourg and the Federal Republic of Germany, since that convention
         does not provide for a system of offsetting the tax paid in Germany on profits made in that State, but excludes those profits
         from the basis of assessment to Luxembourg corporation tax, whether they have been made through a subsidiary or a branch.
         (34)
      
      54.      However, as the referring court points out, the specific feature of the system at issue is that such unfavourable treatment
         exists only if the German subsidiary distributes its profits to its foreign parent company, since, if that subsidiary retains
         its profits, the rate of tax is set at 45%, that is to say at a higher rate than that applicable to profits made in Germany
         by a branch of a non-resident parent company. The circumstances of this case are therefore different, in this regard, from
         the systems at issue in Commission v France and Saint-Gobain ZN, cited above. 
      
      55.      In those cases, the advantages at issue were not subject to such a condition and they had a direct effect on the assets of
         subsidiaries. The difference in treatment was therefore between subsidiaries and permanent establishments. However, the real
         effect of the advantage at issue here, which results from the reduction in the rate of tax, is not on the assets of the subsidiary
         but on those of its non-resident parent company, since that reduction applies only if the profits are distributed to that
         company.
      
      56.      None the less, I do not consider this fact to be such as to support the view that the difference in treatment contained in
         the system at issue does not constitute a limitation on the freedom to choose the legal form of a secondary establishment,
         which is contrary to the Treaty. The purpose of the freedom of establishment is to allow companies having their seat in a
         Member State to open a secondary establishment in another Member State for the purposes of carrying on their activities there
         under the same conditions as national companies, and, consequently, to generate revenue there. It therefore seems to be inherent
         in the exercise of that freedom that the profits made by the secondary establishment should be distributed or transferred
         to the parent company. In this regard, the information provided by the referring court shows that domestic subsidiaries have
         generally distributed their profits to their foreign parent company and have thus qualified for the reduction in the rate
         of tax. (35)
      
      57.      In the light of those considerations, the effects on the freedom to choose the legal form of a secondary establishment of
         the fact that subsidiaries are afforded more favourable treatment than branches in relation to the conditions in which the
         former may distribute to their parent company the profits they have made in the State of establishment do not seem to me to
         be any different from those advantages at issue in Commission v France and Saint-Gobain ZN, cited above, which had the effect of directly reducing the rate of tax applied to subsidiaries on profits made in the host
         State. To that extent, the view can be taken that the tax system at issue, in that it affords to subsidiaries alone the possibility
         of benefiting from a reduction in tax when they distribute their profits to their non-resident parent company, confers on
         them a genuine advantage over branches which is capable of giving rise to a restriction on the freedom to choose the legal
         form of the secondary establishment through which non-resident companies may carry on their activities in Germany. 
      
      58.      Furthermore, as stated above, the freedom of establishment prohibits, in principle, all forms of overt or indirect discrimination
         based on the location of the seat of the companies concerned in another Member State. It is also clear from the description
         of the tax system at issue that the companies which benefit from the possibility of reducing the tax on their profits if distributed
         are those which are subject in Germany to unlimited tax liability because they have their seat or business management in that
         State. 
      
      59.      The criterion governing eligibility for the reduction in the rate of tax if profits are distributed seems to me to be the
         same as that which determined the eligibility for the tax concessions at issue in Saint-Gobain ZN, cited above. In that judgment, the Court held that the national legislation restricted the concessions at issue to companies
         subject in Germany to unlimited tax liability, and that those companies were defined in that legislation as being those having
         their seat or business management in that State. It inferred from this that the refusal to grant those concessions therefore
         affected primarily non-resident companies and was based on the criterion of the company’s seat. (36)
      
      60.      The same analysis may be made in this case. Even though, as the German Government and the Finanzamt contend, under the general
         scheme of the tax system at issue, the reduction in the rate of tax on profits made by capital companies is linked to the
         distribution of those profits, the fact remains that the criterion laid down in the legislation, which creates the entitlement
         to that reduction in the rate of tax in the event of distribution, is indeed the seat of the companies concerned. The referring
         court, within whose jurisdiction the interpretation of its national law falls, expressly states, in this regard, that the
         appellant is the subject of different and less favourable treatment ‘because its seat and business management are in Luxembourg’.
         (37)
      
      61.      In the light of the foregoing, I take the view that the conclusions drawn in the judgment in Saint-Gobain ZN, cited above, may be transposed to this case, inasmuch as the tax system at issue here results in the unfavourable treatment
         of non-resident companies based on the location of their corporate seat and makes it less attractive for those companies to
         pursue their activities in Germany through a branch, thus limiting the choice of the legal form of a secondary establishment
         which is afforded to them by the second sentence of the first paragraph of Article 52 of the Treaty. 
      
      62.      I conclude from this that such a system must be declared to be contrary to Articles 52 and 58 of the Treaty if, as we shall
         see, the respective situations of non-resident companies which carry on their activities in Germany either through a branch
         or through a subsidiary may be regarded as being objectively comparable. 
      
       (b)   The existence of objectively comparable situations 
      63.      The freedom to choose the legal form of the secondary establishment through which an economic operator must be able to carry
         on its activities in another Member State, which is recognised in Articles 52 and 58 of the Treaty, logically implies, if
         that choice is to have real substance, that those different forms of secondary establishment are subject to separate rules
         of law. The freedom to choose the legal form of a secondary establishment is therefore intended to allow economic operators
         to carry on their activities through an agency or a branch, which does not have its own legal personality and whose obligations
         are binding on the parent company. That freedom of choice also allows them to choose to carry on their activities in the State
         of establishment through a subsidiary, that is to say a company having its own legal personality which is subject to generally
         more restrictive incorporation formalities, such as the deposit of share capital, whose obligations are not binding on the
         parent company and which, unlike an agency or a branch, will be regarded in the host State as a company having its seat in
         that State. 
      
      64.      Since the criterion of residence is a commonly-used connecting factor in national tax legislation, the permanent establishments
         of non-resident companies are thus exposed to the risk of being the subject of treatment different from that reserved by the
         tax legislation of the State of establishment to resident companies, including the subsidiaries of companies having their
         seat in another Member State. 
      
      65.      With a view to demonstrating that such a difference in treatment does not contravene the freedom of establishment, to the
         extent that that freedom prohibits discrimination and ‘discrimination’ is defined as the application of different treatment
         to persons in objectively comparable situations or the same treatment to different situations, (38) the Member States concerned regularly submit that such different treatment does not infringe Community law because the situation
         of resident companies and that of non-resident companies are not objectively comparable. 
      
      66.      That argument has been reflected in the case-law relating to natural persons, since in the judgment in Schumacker, cited above, it was held, with regard to national legislation restricting to residents certain tax concessions linked to
         their personal and family circumstances, that, in relation to direct taxes, the situations of residents and of non-residents
         are not, as a rule, comparable. (39) The position is different only where the non-resident receives no significant income in the State of his residence and obtains
         the major part of his taxable income from an activity performed in the State of employment, with the result that the State
         of his residence is not in a position to grant him the benefits resulting from the taking into account of his personal and
         family circumstances. (40) It is only in that situation, according to case-law, that there is no longer any objective difference in the State of employment
         between that non-resident and residents.
      
      67.      Unlike the German Government, I do not take the view that the premiss that the respective situations of residents and non-residents
         are not, as a rule, comparable can be transposed to the direct taxation of companies. For, in the case of natural persons,
         the criterion of residence is different from that of their nationality and may give rise to purely indirect discrimination,
         whereas, in the case of companies, their seat performs a function similar to that of the nationality of natural persons. Although
         the Court, in the judgment in Commission v France, cited above, which is the authoritative decision in these matters, accepted that the possibility cannot altogether be excluded
         that a distinction based on the location of the registered office of a company may, under certain conditions, be justified
         in the field of tax law, (41) it immediately went on to say that acceptance of the proposition that the Member State in which a company seeks to establish
         itself may freely apply to that company different treatment solely by reason of the fact that the company’s registered office
         is situated in another Member State would deprive Article 58 of the Treaty of all meaning. (42) To my knowledge, that analysis remains unchanged in relation to companies. (43)
      
      68.      However, an examination of the case-law on national tax systems which have treated companies differently on the basis of the
         location of their corporate seat shows that the infringement of Community law follows not from the reference to the corporate
         seat or the place of residence but from the fact that, within the same tax system, the Member State concerned has applied
         that connecting factor differently as between the determination of tax liability and the grant of tax concessions. In other
         words, the infringement of Community law follows from the fact that, in the context of the same tax system, the Member State
         in question treats non-resident companies as national companies for the purposes of determining the tax base and then excludes
         them from concessions linked to that tax in the context of its settlement. 
      
      69.      Thus, in the judgment in Commission v France, cited above, which, it will be recalled, concerns a tax credit available only to companies having their registered office
         in France or in the territory of States having concluded conventions for the avoidance of double taxation with the French
         Republic, the Court, in its assessment of the French Government’s argument that the situation of those companies and that
         of companies having their registered office in another Member State were not comparable, held that, for the purposes of determining
         the income liable to corporation tax, the French legislation did not make any distinction between resident companies on the
         one hand and branches and agencies of non-resident companies on the other hand. Both categories of company were liable to
         tax on profits made in undertakings operated in France, to the exclusion of profits which are made abroad or which France
         is entitled to tax under the terms of a double taxation convention. (44)
      
      70.      The Court inferred from this that the legislation at issue could not, in the context of the same tax, treat those two categories
         of companies differently with respect to a concession relating to that tax without giving rise to discrimination. The Court
         held that, by treating resident companies and the permanent establishments of non-resident companies in the same way for the
         purposes of taxing their profits, the national legislature had admitted that there was no objective difference between the
         two with regard to the detailed rules and conditions relating to that taxation which could justify different treatment. (45)
      
      71.      The same method of analysis was applied in the judgments in Royal Bank of Scotland and Saint-Gobain ZN, cited above. In those judgments, the question was also raised whether the fact that, in the State concerned, the subsidiaries
         of non-resident companies were subject to unlimited tax liability, that is to say that they are taxed there on the basis of
         their global income, whereas non-resident companies which carry on their activities there through a permanent establishment
         are subject to only limited tax liability, that is to say that they are taxed there on the basis of only the profits made
         in the State in question by that establishment, is such as to prevent their situations from being regarded as being objectively
         comparable. (46)
      
      72.      The Royal Bank of Scotland case, cited above, concerned Greek legislation which provided for a 40% rate of tax on profits made by a bank having its
         seat in another Member State and carrying on its activities in Greece through a permanent establishment, whereas profits made
         by companies having their seat in Greece were taxed at a rate of 35%. 
      
      73.      As in the judgment in Commission v France, cited above, the Court pointed out that, as far as the method of determining the taxable base is concerned, the Greek tax
         legislation did not establish any distinction such as to justify a difference in treatment between the two categories of companies.
         It held that the tax is calculated on the net profits, after deduction of the part thereof corresponding to non-taxable receipts,
         those profits being determined according to the same rules both for resident and non-resident companies. The Court added that
         the fact that companies having their seat in Greece are subject there to unlimited tax liability, whereas non-resident companies
         which operate a permanent establishment in that State are subject to tax there only on the basis of the profits made by that
         establishment, ‘is not such as to prevent the two categories of companies from being considered, all other things being equal,
         as being in a comparable situation as regards the method of determining the taxable base’. (47)
      
      74.      In the same way, in the judgment in Saint-Gobain ZN, cited above, which, as we have seen, concerns tax concessions relating to the taxation of shareholdings and dividends, the
         Court held that the situations of resident and non-resident companies were objectively comparable because the receipt of dividends
         in Germany and the holding of shares in foreign subsidiaries and sub-subsidiaries were taxable, irrespective of whether the
         dividends were received or the shares held by a resident or a non-resident company, since non-resident companies receive such
         dividends and hold such shares through a permanent establishment located in that State. (48)
      
      75.      It is necessary, therefore, to examine whether, as regards the determination of the basis of assessment to tax of profits
         made in Germany, the tax system at issue treats non-resident companies which pursue their activities through a permanent establishment
         in the same way as those which pursue them through a subsidiary. 
      
      76.      The information provided by the referring court clearly shows that profits made by a subsidiary from its commercial activity
         in Germany are calculated in accordance with the same provisions as profits made in that State by a permanent establishment
         of a non-resident company. (49) It also shows that, although, in certain situations, in the context of specific agreements between the parent company and
         its subsidiary, profits made by the latter may be higher than those which would have been attributed to a branch under otherwise
         identical conditions, that is not, however, generally the case. (50)
      
      77.      In addition, the Commission states, with regard to the method of determining the basis of assessment to tax, that the taxable
         income of non-resident companies which are subject, in principle, to a tax liability limited to profits made in Germany by
         their permanent establishment may also include, inter alia, dividends from foreign companies, interest from foreign debtors
         and fees paid by foreign licence-holders. It also points out that, conversely, profits from foreign sources made by companies
         having their seat in Germany and subject in that State to unlimited tax liability are frequently exempt under conventions
         for the avoidance of double taxation. (51) The German Government has not disputed that description of the respective taxable bases of a permanent establishment and
         of companies having their seat in Germany. 
      
      78.      In the light of the foregoing, I consider it reasonable to take the view that the system at issue, as regards the method of
         determining the taxable base, does not make any distinction between non-resident companies according to whether they carry
         on their activities through a branch or a subsidiary, and that the fact that non-resident companies are subject to only limited
         tax liability, whereas companies having their seat in Germany, including the subsidiaries of non-resident companies, are taxed
         on their global income, does not prevent the two from being regarded as being in objectively comparable situations, as was
         the case in Royal Bank of Scotland and Saint-Gobain ZN, cited above. 
      
      79.      Next, it is necessary to consider whether, as the German Government and the Finanzamt contend, the fact that, under the German
         tax system, the reduction in the rate of tax on profits is linked to their distribution, and the fact that the appellant falls
         within the tax jurisdiction of another Member State are factors capable of demonstrating that foreign companies which are
         the parents of a German subsidiary or branch are not in objectively comparable situations. 
      
      80.      I do not share that view for the following reasons. As the Court has pointed out in its recent case-law, (52) the situations in question must be compared in the light of the purpose of the tax legislation at issue. According to the
         explanations given by the referring court as well as by the German Government and the Finanzamt, the reduction in the rate
         of tax applicable if profits are distributed by a subsidiary to its parent company is linked to the procedure for offsetting
         tax, which is intended to avoid the double taxation of those profits. In those circumstances, the tax on profits paid by the
         subsidiary is reduced to 30% and that tax must, in principle, be offset against the tax debt of dividend beneficiaries subject
         in Germany to unlimited liability to corporation tax or income tax. 
      
      81.      None the less, as is also clear from the description of the national system provided by the referring court, that procedure
         for offsetting tax does not apply in the case of a non-resident parent company which has distributed to it by its German subsidiary
         the profits which the latter has made in Germany, since the parent company is not subject in that State to unlimited tax liability.
         For the purposes of the taxation of its income, that non-resident parent company falls within the tax sovereignty of a Member
         State other than Germany, as does a non-resident company which carries on its activities in that same State through a permanent
         establishment. In both situations, the possibility for those parent companies of a German subsidiary or branch of deducting
         the tax paid to the Federal Republic of Germany on profits made in that State depends on the convention for the avoidance
         of double taxation concluded between Germany and the State in which they are established or on the national law of that State.
         
      
      82.      In this regard, we have already seen that, if the parent company and the subsidiary concerned fall within the scope of Directive 90/435, (53) that directive provides that, in order to prevent the profits made by the subsidiary from being taxed a second time in the
         State in which the parent company is established, that State may exempt them or, if it taxes them, allow that company to offset
         against its tax debt the taxes paid by its subsidiary on the profits distributed. The reduction in the rate of tax on profits
         made in Germany by the subsidiary of a foreign company is therefore not linked to the taxation of dividends through the foreign
         parent company, since a bilateral convention or national law may exempt those profits from its taxable income. 
      
      83.      Indeed, that is the solution adopted in the convention concluded between the Grand Duchy of Luxembourg and the Federal Republic
         of Germany, under which profits made by a Luxembourg company through a branch in Germany are excluded from the basis of assessment
         to Luxembourg corporation tax, as are dividends which a Luxembourg company receives from its German subsidiary. (54) The fact that profits made in Germany by those two types of secondary establishment are treated in the same way in Luxembourg
         confirms that, for the purposes of the States parties to that convention, the parent companies of those establishments were
         indeed in objectively comparable situations. 
      
      84.      In opposition to that analysis, the German Government and the Finanzamt again contend that a transfer of profits from a branch
         to its non-resident parent company cannot be treated in the same way as a distribution of profits because such a transfer
         is an internal operation, whereas, in the case of distribution by a subsidiary, the distributed profits no longer form part
         of the subsidiary’s own assets. 
      
      85.      In my view, that objection can be dismissed on the following grounds. On the one hand, it seems perfectly conceivable that
         a branch, even though it does not have legal personality, should be capable of being regarded, purely for tax purposes, as
         holding the equivalent of its own assets, of which profits made in the host State would form an integral part until transferred,
         if that were the case, to the parent company. There may be some confirmation of that analysis in the provisions of Article
         7(2) of the OECD’s Model Convention, the wording of which is similar to that of Article 5 of the convention concluded between
         the Federal Republic of Germany and the Grand Duchy of Luxembourg, which, for the purposes of calculating direct taxes, treats
         the relationship between a parent company and a permanent establishment in the same way as the relationship between legally
         separate entities. I would also point out that the Federal Republic of Germany has accepted, in the context of its tax law,
         that a permanent establishment such as a branch of a non-resident company can hold its own assets, since, under the national
         provisions at issue in Saint-Gobain ZN, cited above, non-resident companies were taxed in Germany on their shareholdings in foreign subsidiaries and sub-subsidiaries
         through their permanent establishment in that State and on the dividends which they received from such subsidiaries and sub-subsidiaries
         through the permanent establishment. (55) In my opinion, it is therefore reasonable to take the view that the transfer of profits from a branch to its parent company
         may be treated in the same way as a distribution inasmuch as it represents a movement of those profits from one set of assets,
         or the equivalent thereof, to another. (56)
      
      86.      On the other hand, the argument that, if a subsidiary distributes profits, those profits no longer form part of its assets
         is, in my opinion, also inconclusive. After all, the referring court has stated that, in practice, if that subsidiary needed
         those profits after having distributed them to the parent company, the parent company could place them at the subsidiary’s
         disposal in the form of share capital or a shareholders’ loan. (57) The Finanzamt itself accepts in its written observations that that procedure, referred to as ‘Schütt-aus-hol-zurück’ (distribute
         and recover), has been used on a regular basis by non-resident companies in favour of their German subsidiaries. 
      
      87.      In the light of all of the foregoing, I am of the opinion that a transfer of profits from a German branch to its non-resident
         parent company constitutes an operation which is sufficiently akin to a distribution of profits from a subsidiary to its foreign
         parent company to support the view that the situations in question are objectively comparable. 
      
      88.      The German Government and the Finanzamt raise the objection, finally, that the systematic reduction in the rate of tax on
         profits transferred by branches to their non-resident parent companies would be unjustified under the German tax system because
         such a reduction would presuppose that subsidiaries always distribute all of their profits, which is not necessarily the case,
         and this would therefore give rise to a difference in treatment to the detriment of subsidiaries. The German Government and
         the Finanzamt further state that, in certain cases, the tax payable by a subsidiary was to be increased by a final levy on
         non-deductible business expenses. 
      
      89.      In my view, however, that objection is not capable of demonstrating that the situations in question are objectively different.
         On the contrary, by submitting that the systematic reduction from 42% to 33.5% or 30% of the final rate of tax on profits
         transferred by a German branch to its non-resident parent company might have the effect of putting German subsidiaries at
         a disadvantage, the German Government and the Finanzamt implicitly accept that the situations in question may be regarded
         as being objectively comparable. 
      
      90.      Moreover, it would not appear to be impossible for the competent national authorities to apply to transfers of profits from
         a German branch to its non-resident parent company rules equivalent to those applicable to the distribution of the profits
         of a subsidiary, or to provide for a reduction in the rate of tax which takes account of the proportion of the profits actually
         transferred. It does not, on the face of it, appear to be any more difficult for the national tax authorities to have knowledge
         of and take account of such a transfer than it is for them to determine the profits made in Germany by a non-resident company
         through a permanent establishment. 
      
      91.      In the light of all of the foregoing, I take the view that, under the system at issue, the situation of a non-resident company
         which, like the appellant, carries on its activities in Germany through a branch may be regarded as being objectively comparable
         to that of a non-resident company which carries on its activities in that State through a subsidiary. 
      
      92.      It is to be noted, finally, that the German Government and the Finanzamt have not put forward any of the grounds referred
         to in Article 56 of the EC Treaty (58) to justify the restriction thus contained in the tax system at issue. Contrary to the customary practice of a Member State
         the compatibility of whose national tax system with Community law is the subject-matter of proceedings before the Court, the
         German Government and the Finanzamt have likewise not put forward any overriding reasons in the public interest to justify
         the contested restriction. 
      
      93.      If they had submitted that the difference in treatment was justified by the need to preserve the cohesion of the tax system
         at issue, that argument could not have been accepted, in my opinion, despite the broader definition given to that concept
         in the judgment in Manninen, cited above. In that judgment, it was held that a restriction on the exercise of the fundamental freedoms guaranteed by
         the Treaty may be justified by the need to preserve the cohesion of the tax system at issue only on the condition that a direct
         link is established between the tax advantage concerned and the offsetting of that advantage by a particular tax levy (59) and that the difference in treatment observed does not go beyond what is necessary in order to attain the objective of the
         legislation at issue. (60) In that definition, the Court did not refer to the additional condition, previously required by case-law, to the effect that
         the advantage and the offsetting must apply to the same taxpayer. (61) It can be inferred from this that, mirroring in this regard the view taken by Advocate General Kokott, (62) the Court has not ruled out the possibility that justification may now be based on fiscal cohesion where the relief provided
         for a taxpayer is offset by a charge on another taxpayer and the relief and the charge relate to the same income. 
      
      94.      However, as the referring court has stated, there is in the system at issue no direct link between the reduction in the rate
         of corporation tax on profits payable by a German subsidiary and the taxation of those same profits through the foreign parent
         company once they have been distributed to it. Under the tax system at issue, the rate of tax on profits made by a German
         subsidiary is reduced from 45% to 33.5% or 30%, whilst the parent company is exempt from tax on those dividends in Luxembourg.
         
      
      95.      Finally, if, in accordance with the provisions of Directive 90/435 relating to profits made by a subsidiary, profits made in Germany by a subsidiary or by a permanent establishment of a Luxembourg
         company had been taxed, rather than exempted, and the parent companies had been authorised to deduct from the corporation
         tax payable by them in Luxembourg the tax paid on those profits in Germany, it is unlikely that I would have reached a different
         conclusion. For, as that directive provides, (63) the offsetting of that fraction of the tax paid by the subsidiary which relates to those profits is permitted by the State
         in which the parent company is established only up to the limit of the corresponding domestic tax. The difference in the rate
         of tax between 42% and 33.5% or 30% could also, in such circumstances, be disadvantageous to parent companies having chosen
         to carry on their activities in Germany through a permanent establishment. Furthermore, and in any event, I do not see how
         the scheme of the system at issue made it necessary to maintain such a difference in the rate of tax. 
      
      96.      It is in the light of those considerations that I propose that the answer to the first question referred should be that Articles
         52 and 58 of the Treaty must be interpreted as precluding tax legislation of a Member State under which profits made in that
         State by the permanent establishment of a company having its seat in another Member State is subject to a fixed rate of corporation
         tax of 42%, with no possibility of reduction, whereas, if those profits are made by a company having its seat in that State,
         such as a subsidiary, and are distributed in full by that subsidiary to a parent company having its seat in another Member
         State, they are taxed at a rate of 33.5% if distributed up to 30 June 1996 or 30% if distributed after 30 June 1996. 
      
      B –    The second question referred 
      97.      By its second question, the Bundesfinanzhof asks whether the rate of tax applied to permanent establishments must be reduced
         to 30% in respect of the financial year at issue in order to eliminate the infringement of Articles 52 and 58 of the Treaty.
         
      
      98.      The referring court states that the profits made by CLT-UFA’s branch in the course of the 1994 financial year were transferred
         to CLT-UFA at the end of that financial year. It says that the rate of tax on profits distributed in full by a subsidiary
         to its non-resident parent company at that time would have been 33.5%. (64)
      
      99.      I interpret the second question from the Bundesfinanzhof, in the light of its wording and the foregoing information, as meaning
         that that court is seeking to ascertain whether the elimination of the infringement of Community law contained in the legislation
         at issue requires the rate of tax on profits made by the permanent establishment of a non-resident parent company to be reduced
         to 30% as a general rule or whether that reduction must be the subject of an assessment based on the circumstances of the
         particular case. 
      
      100. It must be borne in mind that, under the division of functions provided for in Article 177 of the EC Treaty, (65) it is for the national court to apply the rules of Community law, as interpreted by the Court, since no such application
         is possible without a comprehensive appraisal of the facts of the case. (66)
      
      101. As we have seen, by its first question, the referring court questions the compatibility with the freedom of establishment
         of a tax system such as the German system, under which the profits made by a Luxembourg capital company, such as CLT-UFA,
         in Germany through a branch were taxed at the final rate of 42%, whereas, if that company had carried on its activities there
         through a subsidiary and those profits had been distributed to it in full, they would have been taxed at a rate of 33.5% or
         30%, depending on whether they were distributed up to or after 30 June 1996. 
      
      102. The question considered therefore concerns the compatibility with Community law of a national system which treated a non-resident
         company which carried on its activities in the host State through a branch less favourably than if that company had chosen
         to carry on its activities there through a subsidiary. The disadvantage in this case has thus been found to exist between
         two non-resident companies in relation to the legal form of their secondary establishment in the host State and not between
         the permanent establishment of a non-resident company and a national subsidiary. 
      
      103. If the Court follows my proposal and answers the first question to the effect that such a system constitutes a restriction
         on the freedom of establishment, it will be for the referring court to take the necessary measures to eliminate the unfavourable
         treatment suffered by CLT-UFA in comparison with a Luxembourg capital company which carried on its activities in Germany through
         a subsidiary. This disadvantage must thus be assessed in relation to the overall rate of tax which would have been applied
         to the same profits if they had been made by a subsidiary and distributed in full to its non-resident parent company. In other
         words, if, at the time when CLT-UFA received the transfer of the profits made by its German branch, the profits distributed
         by a German subsidiary to its non-resident parent company were to be subjected to an additional tax of 5% of the amount distributed,
         that additional tax would, in my opinion, also have to be taken into consideration, even though it would not be payable by
         the subsidiary but by the parent company. 
      
      104. I therefore propose that the answer to the second question referred should be that, in order to bring the infringement of
         Community law to an end, it is for the national court to determine the rate of tax which must be applied to profits made by
         a non-resident company through a permanent establishment, by reference to the overall rate of tax which would have been applicable
         if the profits of a subsidiary had been distributed to its parent company. 
      
      V –  Conclusion 
      105. In the light of the foregoing considerations, I propose that the Court should answer the questions referred by the Bundesfinanzhof
         as follows: 
      
      (1)      Articles 52 EC (now, after amendment, Article 43 EC) and 58 EC (now, after amendment, 48 EC) must be interpreted as precluding
         tax legislation of a Member State under which profits made in that State by the place of business of a company having its
         seat in another Member State is subject to a fixed rate of corporation tax of 42%, with no possibility of reduction, whereas,
         if those profits are made by a company having its seat in that State, such as a subsidiary, and are distributed in full by
         that subsidiary to a parent company having its seat in another Member State, they are taxed at a rate of 33.5% if distributed
         up to 30 June 1996 or 30% if distributed after 30 June 1996. 
      
      (2)      In order to bring the infringement of Community law to an end, it is for the national court to determine the rate of tax which
         must be applied to profits made by a non-resident company through a place of business, by reference to the overall rate of
         tax which would have been applicable if the profits of a subsidiary had been distributed to its parent company. 
      
      1 –	 Original language: French.
      
      2 –	As regards the transnational offsetting of losses, see Case C-446/03 Marks & Spencer, pending before the Court.
      
      3 –	Hereinafter: ‘CLT-UFA’.
      
      4 –	Hereinafter: ‘the Finanzamt’.
      
      5 –	Now, after amendment, Article 43 EC.
      
      6 –	Now Article 48 EC.
      
      7 –	See Marchessou, P., ‘Impôts directs’, Répertoire de droit communautaire, Encyclopédie Dalloz, Vol. II, Paris, February 2004. 
      
      8 –	Now Article 293 EC.
      
      9 –	Now Article 94 EC.
      
      10 –	Since 1969, the Commission has proposed a number of directives aimed at harmonisation, in particular the proposal for a
         Council directive of 23 July 1975 concerning the harmonisation of systems of company taxation and of withholding taxes on
         dividends [COM(75) 392 final], which proposed that rates of corporation tax and the withholding of taxes on dividends should
         be harmonised and the tax credit system adopted generally.  Those attempts at harmonisation having been unsuccessful, the
         Commission has, since 1990, focused its efforts on the elimination of tax obstacles to the completion of the internal market.
         In 2001, it took fresh steps to secure agreement on providing undertakings with a consolidated corporate tax base for the
         EU-wide activities (see the Communication from the Commission to the Council, the European Parliament and the Economic and
         Social Committee of 23 October 2001 [COM(2001) 582 final]).
      
      11 –	Judgments in Case C-279/93 Schumacker [1995] ECR I-225, paragraphs 21 and 26; Case C-80/94 Wielockx [1995] ECR I-2493, paragraph 16; Case C-107/94 Asscher [1996] ECR I-3089, paragraph 36; Case C-250/95 [1997] Futura Participations and Singer [1997] ECR I-2471, paragraph 19; Case C-311/97 Royal Bank of Scotland [1999] ECR I-2651, paragraph 19; and Case C-319/02 Manninen [2004] ECR I-7477, paragraph 19. 
      
      12 –	Like Articles 48 (now, after amendment, Article 39 EC) and 59 (now, after amendment, Article 49 EC) of the EC Treaty, which
         concern freedom of movement for workers and the freedom to provide services respectively, Article 52 of the Treaty has been
         directly applicable in the Member States since the end of the transitional period, during which it was for the Member States
         to eliminate restrictions on the exercise of those freedoms and which expired on 1 January 1970 (judgments in Case 2/74 Reyners [1974] ECR 631, paragraph 32, and Case C-307/97 Saint-Gobain ZN [1999] ECR I-6161, paragraph 33).
      
      13 –	Judgments in Case 270/83 Commission v France [1986] ECR 273, paragraph 18; Case C-330/91 Commerzbank [1993] ECR I-4017, paragraph 13; Case C-264/96 ICI [1998] ECR I-4695, paragraph 20; and Case C-141/99 AMID [2000] ECR I-11619, paragraph 20. 
      
      14 –	Judgment in Asscher, cited above (paragraph 29).
      
      15 –	Judgments in Commerzbank, cited above (paragraph 14), and in Case C-1/93 Halliburton Services [1994] ECR I-1137, paragraph 15. 
      
      16 –	Ibid.
      
      17 –	Judgment in Case C-442/02 CaixaBank France [2004] ECR I-8961, paragraph 11.
      
      18 –	Judgments in ICI, cited above (paragraph 21), and Case C-168/01 Bosal [2003] ECR I-9409, paragraph 27. 
      
      19 –	Judgments in Commission v France (paragraph 22) and Saint-Gobain ZN (paragraph 42), cited above.
      
      20 –	Directive 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). This directive was adopted on the basis of Article 100 of the Treaty.
      
      21 –	Paragraph 2(1) of the Körperschaftsteuergesetz (German Law on corporation tax, hereinafter: ‘the KStG’).
      
      22 –	Article 5 of the Convention between the Federal Republic of Germany and the Grand Duchy of Luxembourg on the avoidance
         of double taxation and mutual assistance in administrative and judicial matters in the fields of the taxation of income and
         assets, trade tax and property tax, concluded on 23 August 1958 (BGBl. 1959 II, p. 1270), in the version of the Additional
         Protocol of 15 June 1973 (BGBl. 1978 II, p. 111). This clause is similar to the provisions of Article 7(2) of the Model Convention With Respect to Taxes on Income and on Capital, condensed version, Organisation for Economic Co-operation and Development (OECD), Paris, January 2003.
      
      23 –	Paragraph 23 of the KStG.
      
      24 –	Paragraph 1 of the KStG.
      
      25 –	Order for reference, paragraph II(B)(4). The overall rate of tax of 33.5% comprises 30% on the pre-tax profits, payable
         by the subsidiary, plus 5% on the remaining 70% of those profits, payable by the parent company. Although the order for reference
         does not mention it, that 5% increase in the tax on the profits distributed by a subsidiary appears to transpose Article 5(3)
         of Directive 90/435. Under that provision, the Federal Republic of Germany benefits from a derogation from the obligation
         to exempt profits from withholding tax when these are distributed by a subsidiary to its foreign parent company. Thus, under
         Article 5(3) of that directive, that Member State, for as long as it charges corporation tax on distributed profits at a rate
         at least 11 points lower than the rate applicable to retained profits, may impose, at the latest until mid-1996, a withholding
         tax of 5% on the profits distributed by a German subsidiary to its non-resident parent company.
      
      26 –	Ibid.
      
      27 –	Paragraph 23 of the KStG, as amended by the Law of 23 October 2000 (BGBl. I 2000, p. 1433).
      
      28 –	The German Government cites mutual societies, other legal persons governed by private law, such as associations, institutions
         and foundations, commercial undertakings belonging to legal persons governed by public law and savings banks subject to State
         supervision and managed in the form of a foundation.
      
      29 –	See, in particular, the judgments in Commission v France, Royal Bank of Scotland and Saint-Gobain ZN, cited above.
      
      30 –	Paragraph 22.
      
      31 –	These were, inter alia, exemption from corporation tax for dividends received from companies established in non-member
         countries, provided for by a convention for the avoidance of double taxation concluded with a non-member country, and the
         crediting against German corporation tax of the tax levied in a State other than the Federal Republic of Germany on the profits
         of a subsidiary established in that State, provided for by national legislation.
      
      32 –	Judgment in Saint-Gobain ZN, cited above (paragraph 42).
      
      33 –	Paragraph 43.
      
      34 –	Order for reference, paragraph II(B)(6)(d).
      
      35 –	Ibid., paragraph II(B)(5)(b).
      
      36 –	Paragraphs 36 and 37.
      
      37 –	Order for reference, paragraph II(B)(4).
      
      38 –	Judgment in Schumacker, cited above (paragraph 30).
      
      39 –	Paragraph 31.
      
      40 –	Paragraph 36.
      
      41 –	Paragraph 19.
      
      42 –	Paragraph 18.
      
      43 –	The finding in paragraph 18 of the judgment in Commission v France, cited above, was repeated in the judgment in Joined Cases C-397/98 and C-410/98 Metallgesellschaft and Others [2001] ECR I-1727, paragraph 42.
      
      44 –	Judgment in Commission v France, cited above (paragraph 19).
      
      45 –	Ibid., paragraph 20.
      
      46 –	As the Court held in the judgment in Futura Participations and Singer, cited above (paragraph 22), a system under which a Member State establishes the tax base of its residents as being the entirety
         of their income and limits the tax base of non-residents to income received in the course of activities pursued in its own
         territory, is in conformity with the fiscal principle of territoriality and cannot be regarded as entailing any discrimination,
         overt or covert, prohibited by the Treaty.
      
      47 –	Judgment in Royal Bank of Scotland, cited above (paragraph 29).
      
      48 –	Paragraph 48.
      
      49 –	Order for reference, paragraph II(B)(5)(a).
      
      50 –	Ibid.
      
      51 –	Written observations of the Commission, paragraph 23.
      
      52 –	Judgments in Case C-315/02 Lenz [2004] ECR I-7063, paragraph 30, and in Manninen, cited above, paragraph 33.
      
      53 –	At the material time, the application of this directive was subject to certain conditions, in particular that the parent
         company should hold a minimum of 25% of the capital of the subsidiary (Article 3(1)). Those conditions were relaxed in Council
         Directive 2003/123/EC of 22 December 2003 amending Directive 90/435 (OJ 2004 L 7, p. 41).
      
      54 –	Order for reference, paragraph II(B)(6)(d).
      
      55 –	Under the applicable national law, the ‘domestic operating capital’ formed part of the domestic assets of a taxpayer subject
         to limited tax liability, which included, in particular, the capital used in the establishment which the taxpayer exploits
         within the national territory (paragraph 7).
      
      56 –	This analysis also seems to me to be consistent with the recently adopted directives concerning the taxation of companies,
         in which places of business may be treated in the same way as subsidiaries. Thus, in Directive 2003/123, the Community legislature
         sought to ensure that the payment of profit distributions to, and their receipt by, a places of business of a parent company
         should be subject to the same treatment as that applying between a subsidiary and its parent company (eighth recital). It
         is also possible to cite Council Directive 2003/49/EC of 3 June 2003 on a common system of taxation applicable to interest
         and royalty payments made between associated companies of different Member States (OJ 2003 L 157, p. 49), which is intended
         to ensure that the interest and royalty payments made to associated companies are now taxed only in the Member State in which
         the beneficiary undertaking is resident. The provisions of this directive may also be applicable where the beneficiary is
         a places of business.
      
      57 –	Order for reference, paragraph II(B)(5)(b).
      
      58 –	Now, after amendment, Article 46 EC.
      
      59 –	Paragraph 42.
      
      60 –	Paragraph 29.
      
      61 –	Judgments in Case C-251/98 Baars [2000] ECR I-2787, paragraph 40, Case C-35/98 Verkooijen [2000] ECR I-4071, paragraph 57, and Case C-168/01 Bosal [2003] ECR I-9409, paragraphs 29 to 32.
      
      62 –	See point 61 of her Opinion in Manninen, cited above.
      
      63 –	Article 4(1).
      
      64 –	Order for reference, paragraph II(B)(7).
      
      65 –	Now Article 234 EC.
      
      66 –	Judgment in Case C-320/88 Shipping and Forwarding Enterprise Safe [1990] ECR I-285, paragraph 11.