CELEX: C2001/173/23
Language: en
Date: 2001-06-16 00:00:00
Title: Judgment of the Court (Sixth Chamber) of 8 March 2001 in Case C-405/98 (reference for a preliminary ruling from the Stockholms Tingsrätt, Sweden): Konsumentombudsmannen (KO) v Gourmet International Products AB (GIP) (Free movement of goods — Articles 30 and 36 of the EC Treaty (now, after amendment, Articles 28 EC and 30 EC) — Freedom to provide services — Articles 56 and 59 of the EC Treaty (now, after amendment, Articles 46 EC and 49 EC) — Swedish legislation on the advertising of alcoholic beverages — Selling arrangements — Measure having an effect equivalent to a quantitative restriction — Justification in the interest of the protection of health)

C 173/14                EN                      Official Journal of the European Communities                                          16.6.2001
1.   It is contrary to Article 52 of the EC Treaty (now, after                              JUDGMENT OF THE COURT
     amendment, Article 43 EC) for the tax legislation of a Member
     State, such as that in issue in the main proceedings, to afford
     companies resident in that Member State the possibility of                                      (Sixth Chamber)
     benefiting from a taxation regime allowing them to pay
     dividends to their parent company without having to pay                                         of 8 March 2001
     advance corporation tax where their parent company is also
     resident in that Member State but to deny them that possibility
     where their parent company has its seat in another Member             in Case C-405/98 (reference for a preliminary ruling from
     State.                                                                the Stockholms Tingsrätt, Sweden): Konsumentom-
                                                                           budsmannen (KO) v Gourmet International Products AB
                                                                                                          (GIP) (1)
2.   Where a subsidiary resident in one Member State has been
     obliged to pay advance corporation tax in respect of dividends
                                                                           (Free movement of goods — Articles 30 and 36 of the EC
     paid to its parent company having its seat in another Member
                                                                           Treaty (now, after amendment, Articles 28 EC and 30 EC)
     State even though, in similar circumstances, the subsidiaries of
                                                                           — Freedom to provide services — Articles 56 and 59 of the
     parent companies resident in the first Member State were
                                                                           EC Treaty (now, after amendment, Articles 46 EC and 49
     entitled to opt for a taxation regime that allowed them to avoid
                                                                           EC) — Swedish legislation on the advertising of alcoholic
     that obligation, Article 52 of the Treaty requires that resident
                                                                           beverages — Selling arrangements — Measure having an
     subsidiaries and their non-resident parent companies should
                                                                           effect equivalent to a quantitative restriction — Justification
     have an effective legal remedy in order to obtain reimbursement
                                                                                       in the interest of the protection of health)
     or reparation of the financial loss which they have sustained
     and from which the authorities of the Member State concerned
     have benefited as a result of the advance payment of tax by the                                  (2001/C 173/23)
     subsidiaries.
     The mere fact that the sole object of such an action is the                               (Language of the case: Swedish)
     payment of interest equivalent to the financial loss suffered as a
     result of the loss of use of the sums paid prematurely does not
     constitute a ground for dismissing such an action.                    (Provisional translation; the definitive translation will be published
                                                                                               in the European Court Reports)
     While, in the absence of Community rules, it is for the domestic
     legal system of the Member State concerned to lay down the            In Case C-405/98: reference to the Court under Article 177 of
     detailed procedural rules governing such actions, including           the EC Treaty (now Article 234 EC) from the Stockholms
     ancillary questions such as the payment of interest, those rules      Tingsrätt, Sweden for a preliminary ruling in the proceedings
     must not render practically impossible or excessively difficult the   pending before that court between Konsumentombudsmannen
     exercise of rights conferred by Community law.                        (KO) and Gourmet International Products AB (GIP) — on the
                                                                           interpretation of Articles 30, 36, 56 and 59 of the EC Treaty
                                                                           (now, after amendment, Articles 28 EC, 30 EC, 46 EC and 49
3.   It is contrary to Community law for a national court to refuse        EC), — the Court (Sixth Chamber), composed of: C. Gulmann,
     or reduce a claim brought before it by a resident subsidiary          President of the Chamber, V. Skouris, J.-P. Puissochet (Rappor-
     and its non-resident parent company for reimbursement or              teur), R. Schintgen and F. Macken, Judges; F.G. Jacobs, Advocate
     reparation of the financial loss which they have suffered as a        General; H. von Holstein, Deputy Registrar, for the Registrar,
     consequence of the advance payment of corporation tax by the          has given a judgment on 8 March 2001, in which it has ruled:
     subsidiary, on the sole ground that they did not apply to the
     tax authorities in order to benefit from the taxation regime          Articles 30 and 36 of the EC Treaty (now, after amendment,
     which would have exempted the subsidiary from making                  Articles 28 EC and 30 EC) and Articles 56 and 59 of the EC Treaty
     payments in advance and that they therefore did not make use          (now, after amendment, Articles 46 EC and 49 EC) do not preclude
     of the legal remedies available to them to challenge the refusals     a prohibition on the advertising of alcoholic beverages such as that
     of the tax authorities, by invoking the primacy and direct effect     laid down in Article 2 of Lagen 1978:763 med vissa bestämmelser
     of the provisions of Community law, where upon any view               om marknadsföring av alkoholdrycker (Swedish Law laying down
     national law denied resident subsidiaries and their non-resident      provisions on the Marketing of Alcoholic Beverages), as amended,
     parent companies the benefit of that taxation regime.                 unless it is apparent that, in the circumstances of law and of fact
                                                                           which characterise the situation in the Member State concerned, the
                                                                           protection of public health against the harmful effects of alcohol can
                                                                           be ensured by measures having less effect on intra-Community trade.
(1) OJ C 1 of 4.1.1999.
                                                                           (1) OJ C 1 of 4.1.1999.