Gaz de France - Berliner Investissement SA v Bundeszentralamt für Steuern.
Date: 2009-10-01
19. In this regard, it must be noted that, although in the light of the division of responsibilities in the preliminary ruling procedure, the referring court alone can determine the subject-matter of the questions it proposes to refer to the Court, the Court has also stated that, in exceptional circumstances, it can examine the conditions in which the case was referred to it by the national court, in order to assess whether it has jurisdiction (see, inter alia, Case C‑62/06 ZF Zefeser  [2007] ECR I‑11995, paragraph 14).
20. Such is the case where 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, inter alia, Case C‑379/98 PreussenElektra  [2001] ECR I‑2099, paragraph 39; Joined Cases C‑94/04 and C‑202/04 Cipolla and Others  [2006] ECR I‑11421, paragraph 25; and Case C‑379/05 Amurta [2007] ECR I‑9569, paragraph 64). The need to provide an interpretation of Community law which will be of use to the national court means that the national court must define the factual and legislative context of the questions it is asking or, at the very least, explain the factual circumstances on which those questions are based (see, inter alia, Ca se C‑237/04 Enirisorse  [2006] ECR I‑2843, paragraph 17 and the case‑law cited).
21. The information provided in the order for reference must not only enable the Court to give useful answers but must also give the governments of the Member States and the other interested parties the opportunity to submit observations pursuant to Article 23 of the Statute of the Court of Justice. It is the Court’s duty to ensure that that opportunity is safeguarded, bearing in mind that under that provision only the orders for reference are notified to the interested parties (see, inter alia, Enirisorse , paragraph 18 and the case‑law cited).
26. To answer that question, it is necessary to take account of the wording of the provision whose interpretation is sought, as well as the objectives and the scheme of Directive 90/435 (see, to that effect, Joined Cases C‑283/94, C‑291/94 and C‑292/94 Denkavit and Others  [1996] ECR I‑5063, paragraphs 24 and 26; Case C‑375/98 Epson Europe  [2000] ECR I‑4243, paragraphs 22 and 24; and Case C‑27/07 Banque Fédérative du Crédit Mutel  [2008] ECR I‑2067, paragraph 22).
27. In that regard, it should be borne in mind that, as is in particular apparent from the third recital in its preamble, Directive 90/435 aims, by introducing a common system of taxation, to eliminate any disadvantage to cooperation between companies of different Member States as compared with cooperation between companies of the same Member State and thereby to facilitate the grouping together of companies at Community level ( Denkavit and Others , paragraph 22; Epson Europe , paragraph 20; Case C‑294/99 Athinaïki Zythopaiia  [2001] ECR I‑6797, paragraph 25; Case C‑58/01 Océ van der Grinten  [2003] ECR I‑9809, paragraph 45; and Banque Fédérative du Crédit Mutel , paragraph 23). Directive 90/435 thus seeks to ensure the neutrality, from the tax point of view, of the distribution of profits by a subsidiary established in one Member State to its parent company established in another Member State ( Banque Fédérative du Crédit Mutel , paragraph 24).
29. Article 2 of Directive 90/435 establishes the conditions which a company has to satisfy to be regarded as a company of a Member State within the meaning of that directive and thus defines its scope. As pointed out by the Advocate General in point 27 of his Opinion, those conditions are cumulative.
37. For holdings which do not fall within the scope of Directive 90/435, it is for the Member States to determine whether, and to what extent, economic double taxation of dividends 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 economic double taxation (see Case C‑374/04 Test Claimants in Class IV of the ACT Group Litigation  [2006] ECR I‑11673, paragraph 54, and Amurta , paragraph 24).
38. Directive 90/435 thus restricts the powers of the Member States regarding the taxation of profits distributed by companies established in their territory to companies established in another Member State which fall within the scope of that directive. Accordingly, the fundamental principle of legal certainty precludes the list of companies in point (f) of the annex to the directive from being interpreted as merely an indicative list, when such an interpretation does not follow from the wording or scheme of Directive 90/435.
39. The interpretation put forward by the applicant in the main proceedings and the Commission can also not be deduced from any wishes expressed by certain Member States upon the adoption of Directive 90/435 to exclude only partnerships from the scope of that directive. Expressions of intent on the part of Member States in the Council of the European Union have no legal status if they are not actually expressed in the legislation. Legislation is addressed to those affected by it. They must, in accordance with the principle of legal certainty, be able to rely on what it contains ( Denkavit and Others , paragraph 29).
49. In that regard, the assessment of the validity of a measure which the Court is called upon to undertake on a reference for a preliminary ruling must normally be based on the situation which existed at the time that measure was adopted (Joined Cases C‑248/95 and C‑249/95 SAM Schiffahrt and Stapf  [1997] ECR I‑4475, paragraph 46).
50. Even if the validity of a measure might, in certain cases, be assessed by reference to new factors which arose after its adoption ( SAM Schiffahrt and Stapf , paragraph 47), such an assessment does not have to be made in the present case.
52. The Court has consistently held that the Community institutions are free to introduce harmonisation gradually or in stages. It is generally difficult to implement such measures because they require the competent Community institutions to draw up, on the basis of diverse and complex national provisions, common rules in harmony with the aims laid down by the EC Treaty and approved by a qualified majority of the Members of the Council, or even, as is the case in fiscal matters, their unanimous agreement (see, to that effect, Case 37/83 Rewe‑Zentrale  [1984] ECR 1229, paragraph 20; Case C‑233/94 Germany  v Parliament and Council  [1997] ECR I‑2405, paragraph 43; and Case C‑166/98 Socridis  [1999] ECR I‑3791, paragraph 26).
54. In accordance with settled case‑law, freedom of establishment for nationals of one Member State on the territory of another Member State includes 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 Member State of establishment. The abolition of restrictions on freedom of establishment also applies to restrictions on the setting up of agencies, branches or subsidiaries by nationals of a Member State established in the territory of another Member State (see, inter alia, Case 270/83 Commission v France [1986] ECR 273, paragraph 13; Case C‑311/97 Royal bank of Scotland  [1999] ECR I‑2651, paragraph 22; and Case C‑253/03 CLT‑UFA  [2006] ECR I‑1831, paragraph 13).
55. It is also settled case‑law that, even though, according to their wording, the provisions of the EC Treaty concerning freedom of establishment aim to ensure that foreign nationals and companies are treated in the host Member State in the same way as nationals of that State, they also prohibit the Member State of origin from hindering the establishment in another Member State of one of its nationals or of a company incorporated under its legislation (see, inter alia, Case C‑264/96 ICI  [1998] ECR I‑4695, paragraph 21; Case C‑196/04 Cadbury Schweppes and Cadbury Schweppes Overseas  [2006] ECR I‑7995, paragraph 42; C‑298/05 Columbus Container Services  [2007] ECR I‑10451, paragraph 33; and Case C‑414/06 Lidl Belgium  [2008] ECR I‑3601, paragraph 19).
56. As pointed out in paragraph 27 of this judgment, the aim of Directive 90/435 is to eliminate, by introducing a common system of taxation, any disadvantage to cooperation between companies of different Member States, as compared with cooperation between companies of the same Member State, and thereby to facilitate the grouping together of companies at Community level ( Banque Fédérative du Crédit Mutuel , paragraph 23, and Case C‑138/07 Cobelfret  [2009] ECR I‑0000, paragraph 28).
57. In order to ensure the neutrality, from the tax point of view, of the distribution of profits by a subsidiary established in one Member State to its parent company established in another Member State, Directive 90/435 aims to avoid economic double taxation of profits, in other words, to avoid taxation of distributed profits first in the hands of the subsidiary and then in the hands of the parent company (see Banque Fédérative du Crédit Mutuel , paragraphs 24 and 27, and Cobelfret , paragraph 29).
60. The Court has already held that, in respect of shareholdings which are not covered by Directive 90/435, it is for the Member States to determine whether, and to what extent, economic double taxation of distributed profits is to be avoided and, for that purpose, to establish, either unilaterally or by conventions concluded with other Member States, procedures intended to prevent or mitigate such economic double taxation. However, that does not of itself allow them to impose measures that are contrary to the freedoms of movement guaranteed by the Treaty (see Test Claimants in Class IV of the ACT Group Litigation , paragraph 54; Amurta , paragraph 24; and Case C‑303/07 Aberdeen Property Fininvest Alpha  [2009] ECR I‑0000, paragraph 28).