CELEX: C2001/317/05
Language: en
Date: 2001-11-10 00:00:00
Title: Judgment of the Court (Fifth Chamber) of 4 October 2001 in Case C-294/99 (reference for a preliminary ruling from the Diikitiko Protodikio Athinon): Athinaiki Zithopiia AE v Elliniko Dimosio (Greek State) (Taxation of company profits — Parent companies and subsidiaries — Directive 90/435/EEC — Concept of withholding tax)

10.11.2001                EN                       Official Journal of the European Communities                                              C 317/3
(EEC) No 2913/92 of 12 October 1992 establishing the                                           JUDGMENT OF THE COURT
Community Customs Code (OJ 1992 L 302, p. 1), and of
Article 905(1) of Commission Regulation (EEC) No 2454/93
of 2 July 1993 laying down provisions for the implementation                                            (Fifth Chamber)
of Council Regulation (EEC) No 2913/92 (OJ 1993 L 253,
p. 1), as amended by Commission Regulation (EC) No 1676/96                                             of 4 October 2001
of 30 July 1996 (OJ 1996 L 218, p. 1) — the Court
(Sixth Chamber) composed of: C. Gulmann, President of
the Chamber, J.-P. Puissochet, R. Schintgen (Rapporteur),                     in Case C-294/99 (reference for a preliminary ruling from
F. Macken and N. Colneric, Judges; F. G. Jacobs, Advocate                     the Diikitiko Protodikio Athinon): Athinaiki Zithopiia AE
General; H. A. Rühl, Principal Administrator, for the Registrar,                             v Elliniko Dimosio (Greek State) (1)
gave a judgment on 27 September 2001, the operative part of
which is as follows:
                                                                              (Taxation of company profits — Parent companies and
                                                                              subsidiaries — Directive 90/435/EEC — Concept of with-
                                                                                                            holding tax)
1.    Article 236(1) of Council Regulation (EEC) No 2913/92 of
      12 October 1992 establishing the Community Customs Code                                            (2001/C 317/05)
      does not permit the repayment of import duties where, after a
      complete customs declaration has been accepted by the customs                                (Language of the case: Greek)
      authorities and the goods covered by it have been released into
      free circulation, the declarant presents a certificate of authenticity
      by virtue of which the goods would, supposing the certificate to        (Provisional translation; the definitive translation will be published
      have been produced with the goods, have been eligible for                                   in the European Court Reports)
      favourable tariff treatment.
                                                                              In Case C-294/99: reference to the Court under Article 234
                                                                              EC from the the Diikitiko Protodikio Athinon (Administrative
2.    The fact that repayment or remission of duties pursuant to              Court of First Instance, Athens), Greece, for a preliminary
      Article 236(1) of Regulation No 2913/92 is excluded because             ruling in the proceedings pending before that court between
      one of the legal conditions laid down for that repayment or             Athinaiki Zithopiia AE and Elliniko Dimosio (Greek State) —
      remission has not been satisfied does not, of itself, exclude           on the interpretation of Article 5(1) of Council Directive
      repayment or remission of those duties on the basis of                  90/435/EEC of 23 July 1990 on the common system of
      Articles 239(1) of Regulation No 2913/92 and                            taxation applicable in the case of parent companies and
      Article 905(1) of Commission Regulation (EEC) No 2454/93                subsidiaries of different Member States (OJ 1990 L 225, p. 6)
      of 2 July 1993 laying down provisions for the implementation            — the Court (Fifth Chamber), composed of: A. La Pergola,
      of Regulation (EEC) No 2913/92, as amended by Commission                President of the Chamber, M. Wathelet (Rapporteur),
      Regulation (EC) No 1676/96 of 30 July 1996, provided                    D.A.O. Edward, P. Jann and L. Sevón, Judges; S. Alber,
      however that the legal conditions for the application of those          Advocate General; L. Hewlett, Administrator, for the Registrar,
      provisions are satisfied.                                               has given a judgment on 4 October 2001, in which it has
                                                                              ruled:
      Factors ‘which might constitute a special situation resulting
      from circumstances in which no deception or obvious negligence          There is a withholding tax, within the meaning of Article 5(1) of
      may be attributed to the person concerned’ for the purposes of          Council Directive 90/435/EEC of 23 July 1990 on the common
      Article 905(1) of Regulation No 2454/93, as amended by                  system of taxation applicable in the case of parent companies and
      Regulation No 1676/96, exist where, having regard to the                subsidiaries of different Member States, where national legislation
      objective of fairness underlying Article 239 of Regulation              provides that, in the event of distribution of profits by a subsidiary (a
      No 2913/92, factors liable to place the applicant in an                 public limited company or equivalent company) to its parent company,
      exceptional situation as compared with other operators engaged          in order to determine the taxable profits of the subsidiary its total net
      in the same business are found to exist. It is for the national         profits, including income which has been subject to special taxation
      court to assess, on the basis of that criterion, whether factors        entailing extinction of tax liability and non-taxable income, must be
      which might constitute such a special situation do exist,               reincorporated into the basic taxable amount, when income falling
      necessitating examination of the file by the Commission.                within those two categories would not be taxable on the basis of the
                                                                              national legislation if they remained with the subsidiary and were not
                                                                              distributed to the parent company.
(1) OJ C 265 of 18.9.1999.
                                                                              (1) OJ C 314 of 30.10.1999.