Belgian State - Service public fédéral Finances v Les Vergers du Vieux Tauves SA.
Date: 2008-12-22
16. As a preliminary point, it must be observed that, according to established case-law, in the context of the cooperation between the Court of Justice and the national courts provided for by Article 234 EC, it is solely for the national court before which a dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine, in the light of the particular circumstances of the case pending before it, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court (see, to that effect, inter alia, Case C‑415/93 Bosman  [1995] ECR I‑4921, paragraph 59; Case C‑28/95 Leur-Bloem  [1997] ECR I‑4161, paragraph 24; Case C‑306/99 BIAO  [2003] ECR I‑1, paragraph 88; and Case C‑217/05 Confederación Española de Empresarios de Estaciones de Servicio  [2006] ECR I‑11987, paragraph 16).
17. Where questions submitted by national courts concern the interpretation of a provision of Community law, the Court is thus bound, in principle, to give a ruling unless it is obvious that the request for a preliminary ruling is in reality designed to induce the Court to give a ruling by means of a fictitious dispute, or to deliver advisory opinions on general or hypothetical questions, or that the interpretation of Community law requested bears no relation to the actual facts of the main action or its purpose, or that the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see BIAO , paragraph 89, and Confederación Española de Empresarios de Estaciones de Servicio , paragraph 17).
20. Likewise, the objection of inadmissibility raised by the Italian Government on the ground that the referring court has not demonstrated, at that stage of the proceedings, the need to obtain an answer from the Court to the question referred so as to enable it to give judgment in the main proceedings must be rejected. In accordance with the second paragraph of Article 234 EC, it is for the national court or tribunal to decide at what stage in the proceedings it is appr opriate for that court or tribunal to refer a question to the Court of Justice for a preliminary ruling (see Joined Cases 36/80 and 71/80 Irish Creamery Milk Suppliers Association and Others  [1981] ECR 735, paragraph 5; Case C‑236/98 JämO  [2000] ECR I‑2189, paragraph 30; and Case C‑303/06 Coleman  [2008] ECR I‑0000, paragraph 29).
21. Finally, in respect of the objections raised by the Belgian Government, it should first of all be recalled that, according to established case-law, the Court’s jurisdiction extends, in principle, to questions concerning Community provisions in situations where the facts of the main proceedings are outside the scope of Community law but where those provisions have been rendered applicable by domestic law (see, in particular, Leur-Bloem , paragraph 27; Case C‑130/95 Giloy  [1997] ECR I‑4291, paragraph 23; Case C‑247/97 Schoonbroodt  [1998] ECR I‑8095, paragraph 14; and Case C‑170/03 Feron  [2005] ECR I‑2299, paragraph 11).
24. In this respect, the facts of the case in the main proceedings here differ from those of Case C‑346/93 Kleinwort Benson  [1995] ECR I‑615, in which the Court declared that it lacked jurisdiction to rule on a question referred for a preliminary ruling as its judgment would not bind the referring court. The national legislation at issue in Kleinwort Benson  was limited to taking the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters (OJ 1978 L 304, p. 77) as a model and only partially adopting the wording.
26. Third, as is clear from paragraphs 21 and 33 of Leur-Bloem , the mere fact that the interpretation to be given to Article 202(2) of the ITC 1992 does not derive exclusively from the judgment that the Court will be required to deliver does not preclude its jurisdiction to rule on the question referred.
27. In the context of the allocation of judicial functions between national courts and the Court of Justice under Article 234 EC, the latter cannot, in its reply to the national court, take account of the general scheme of the provisions of domestic law which, while referring to Community law, define the extent of that reference (Joined Cases C‑297/88 and C‑197/89 Dzodzi  [1990] ECR I‑3763, paragraph 42). Therefore, consideration of the limits which the national legislature may have placed on the application of Community law to purely internal situations is a matter for domestic law and consequently falls within the exclusive jurisdiction of the courts of the Member State ( Dzodzi , paragraph 42; Case C‑73/89 Fournier  [1992] ECR I‑5621, paragraph 23; and Leur-Bloem , paragraph 33). On the other hand, with regard to Community law, the referring court may not diverge, within the limits of the reference of domestic law back to Community law, from the interpretation provided by the Court.
36. As is apparent in particular from the third recital in the preamble thereto, Directive 90/435 seeks to eliminate, by the introduction of a common system, any penalisation of cooperation between companies of different Member States as compared with cooperation between companies of the same Member State and to facilitate thereby the grouping together of companies at the Community level (Case C‑294/99 Athinaiki Zithopiia  [2001] ECR I‑6797, paragraph 25; Case C‑446/04 Test Claimants in the FII Group Litigation  [2006] ECR I‑11753, paragraph 103; Case C‑27/07 Banque Fédérative du Crédit Mutuel  [2008] ECR I‑0000, paragraph 23; and, to that effect, Case C‑284/06 Burda  [2008] ECR I‑0000, paragraph 51).
37. While Directive 90/435 seeks to eliminate cases of double taxation of profits distributed by subsidiaries to their parent companies, it is intended, in a general sense, to eliminate disadvantages for cross-border cooperation between companies which are attributable to the fact that, as is also apparent from the third recital in the preamble thereto, the tax provisions governing relations between parent companies and subsidiaries of different Member States are, in general, less advantageous than those applicable to relations between parent companies and subsidiaries of the same Member State.
42. Second, under Article 4(2) of Directive 90/435, the Member States retain the option of providing that any losses resulting from the distribution of the profits of the subsidiary may not be deducted from the taxable profits of the parent company. That provision enables Member States to adopt measures to prevent a parent company from enjoying a double tax advantage. Indeed, that company could, first, by virtue of the first indent of Article 4(1) of that directive, receive profits without being taxed and, second, obtain a tax reduction by means of the deduction in respect of charges relating to losses for the holding resulting from the distribution of such profits.
44. Accordingly, in the light of the clear and unambiguous wording of the provisions of Directive 90/435, as confirmed by the purpose thereof, it is not possible to interpret the concept of a holding in the capital of a company of another Member State, set out in Article 3 of that directive, as covering the holding, in usufruct, of shares in the capital of a company of another Member State and as thereby increasing the obligations of the relevant Member States (see, by way of analogy, Case C‑220/03 BCE  v Germany  [2005] ECR I‑10595, paragraph 31, and Case C‑263/06 Carboni e derivati  [2008] ECR I‑1077, paragraph 48).
46. Although, for holdings to which Directive 90/435 does not apply, it is for the Member States to determine whether, and to what extent, double taxation of distributed profits is to be avoided and, for that purpose, to establish, either unilaterally or through conventions concluded with other Member States, procedures intended to prevent or mitigate such double taxation, that fact does not, of itself, entitle them to impose measures that contravene the freedoms of movement guaranteed by the EC Treaty (see, to that effect, Case C‑374/04 Test Claimants in Class IV of the ACT Group Litigation  [2006] ECR I‑11673, paragraph 54, and Case C‑379/05 Amurta  [2007] ECR I‑9569, paragraph 24).
47. It is thus clear from the Court’s case-law that, whatever the mechanism adopted for preventing or mitigating the imposition of a series of charges to tax or economic double taxation, the freedoms of movement guaranteed by the Treaty preclude a Member State from treating foreign-sourced dividends less favourably than nationally-sourced dividends, unless such a difference in treatment concerns situations which are not objectively comparable or is justified by overriding reasons in the general interest ( Test Claimants in the FII Group Litigation , paragraph 46 and the case-law cited).