Amurta SGPS v Inspecteur van de Belastingdienst/Amsterdam.
Date: 2007-11-08
16. It should be noted as a preliminary observation that, according to consistent case-law, although direct taxation falls within their competence, Member States must none the less exercise that competence consistently with Community law (see, in particular, Case C‑446/03 Marks & Spencer  [2005] ECR I‑10837, paragraph 29; Case C‑196/04 Cadbury Schweppes and Cadbury Schweppes Overseas  [2006] ECR I‑7995, paragraph 40; and Case C‑374/04 Test Claimants in Class IV of the ACT Group Litigation  [2006] ECR I‑11673, paragraph 36).
17. It must also be pointed out that, in the absence of any unifying or harmonising Community measures, Member States retain the power to define, by treaty or unilaterally, the criteria for allocating their powers of taxation, particularly with a view to eliminating double taxation (Case C‑336/96 Gilly  [1998] ECR I‑2793, paragraphs 24 and 30; Case C‑307/97 Saint-Gobain ZN  [1999] ECR I‑6161, paragraph 57; and Case C‑470/04 N  [2006] ECR I‑7409, paragraph 44).
18. As appears particularly from the third recital in the preamble to Directive 90/435, the aim of that directive is, by the introduction of 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 (Case C‑294/99 Athinaïki Zithopiïa  [2001] ECR I‑6797, paragraph 25, and Case C‑446/04 Test Claimants in the FII Group Litigation  [2006] ECR I‑11753, paragraph 103).
24. In that regard, it must be pointed out 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 through double taxation conventions concluded with other Member States, procedures intended to prevent or mitigate such economic double taxation. However, this does not of itself mean that the Member States are entitled to impose measures that contravene the freedoms of movement guaranteed by the EC Treaty ( Test Claimants in Class IV of the ACT Group Litigation , paragraph 54).
28. Treating dividends paid to companies established in another Member State less favourably than dividends paid to companies established in the Netherlands is liable to deter companies established in another Member State from investing in the Netherlands and thus constitutes a restriction on the free movement of capital prohibited, in principle, by Article 56 EC.
32. It is therefore appropriate to distinguish unequal treatment permitted under Article 58(1)(a) EC from discrimination prohibited under Article 58(3). According to the case-law, for a national fiscal provision such as that at issue in the main proceedings to be capable of being regarded as compatible with the provisions of the Treaty on the free movement of capital, the difference in treatment must concern situations which are not objectively comparable or be justified by overriding reasons in the public interest (Case C‑35/98 Verkooijen  [2000] ECR I‑4071, paragraph 43; Case C‑319/02 Manninen  [2004] ECR I‑7477, paragraph 29; and Case C‑512/03 Blanckaert [2005] ECR I‑7685, paragraph 42).
37. The Court has already held that, in the context of measures laid down by a Member State in order to prevent or mitigate the imposition of a series of charges to tax on, or the economic double taxation of, profits distributed by a resident company, resident shareholders receiving dividends are not necessarily in a situation which is comparable to that of shareholders receiving dividends who are resident in another Member State (Case C‑170/05 Denkavit Internationaal and Denkavit France  [2006] ECR I‑11949, paragraph 34).
38. However, as soon as a Member State, either unilaterally or by way of a convention, imposes a charge to income tax not only on resident shareholders but also on non-resident shareholders in respect of dividends which they receive from a resident company, the position of those non-resident shareholders becomes comparable to that of resident shareholders ( Test Claimants in Class IV of the ACT Group Litigation , paragraph 68, and Denkavit Internationaal and Denkavit France , paragraph 35).
39. In fact, it is solely because of the exercise by that State of its taxing powers that, irrespective of any taxation in another Member State, a risk of a series of charges to tax or economic double taxation may arise. In such a case, in order for non-resident companies receiving dividends not to be subject to a restriction on the free movement of capital prohibited, in principle, by Article 56 EC, the State in which the company making the distribution is resident is obliged to ensure that, under the procedures laid down by its national law in order to prevent or mitigate a series of liabilities to tax, non-resident shareholder companies are subject to the same treatment as resident shareholder companies (see Test Claimants in Class IV of the ACT Group Litigation , paragraph 70).
46. In that respect, it should be pointed out that, in paragraphs 28 and 21, respectively, of the judgments in Bachmann  and Case C‑300/90 Commission  v Belgium [1992] ECR I‑305, the Court recognised that the need to maintain the cohesion of a tax system can justify a restriction on the exercise of the fundamental freedoms guaranteed by the Treaty. However, for an argument based on such a justification to succeed, a direct link must be established between the tax advantage concerned and the offsetting of that advantage by a particular tax levy ( Manninen , paragraph 42, and Case C‑524/04 Test Claimants in the Thin Cap Group Litigation  [2007] ECR I‑2107, paragraph 68).
47. The case-law further shows that an argument based on the need to safeguard the cohesion of a tax system must be examined in the light of the objective pursued by the tax legislation in question (Case C‑9/02 De Lasteyrie du Saillant  [2004] ECR I‑2409, paragraph 67, and Manninen , paragraph 43).
55. It must be pointed out in this regard that the Kingdom of the Netherlands cannot rely on the DTC in order to avoid the obligations imposed on it by the Treaty ( Denkavit Internationaal and Denkavit France , paragraph 53).
58. As regards the argument concerning the loss of the possibility to tax profits generated in the Netherlands, it must be stated that the need to safeguard the balanced allocation between the Member States of the power to tax may be accepted, in particular, where the system in question is designed to prevent conduct capable of jeopardising the right of the Member States to exercise their taxing powers in relation to activities carried on in their territory (see Case C‑347/04 Rewe Zentralfinanz  [2007] ECR I‑2647, paragraph 42, and Oy AA , paragraph 54).
59. However, where a Member State has chosen not to tax recipient companies established in its territory in respect of this type of income, it cannot rely on the argument that there is a need to safeguard the balanced allocation between the Member States of the power to tax in order to justify the taxation of recipient companies established in another Member State.
64. According to settled case-law, questions on the interpretation of Community law referred by a national court in the factual and legislative context which that court is responsible for defining, and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance (see Case C‑300/01 Salzmann  [2003] ECR I‑4899, paragraphs 29 and 31). The Court may refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of Community law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or 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 Joined Cases C‑222/05 to C‑225/05 van der Weerd and Others  [2007] ECR I‑11421, paragraph 22).
65. That presumption of relevance cannot be rebutted by the simple fact that one of the parties to the main proceedings contests certain facts, the accuracy of which is not a matter for the Court to determine and on which the delimitation of the subject-matter of those proceedings depends ( Cipolla and Others , paragraph 26, and van der Weerd and Others , paragraph 23).
75. In this regard, it should be recalled that it is settled case-law that unfavourable tax treatment contrary to a fundamental freedom cannot be justified by the existence of other tax advantages, even supposing that such advantages exist ( Verkooijen , paragraph 61).
78. Accordingly, the Kingdom of the Netherlands cannot rely on the existence of a tax advantage granted unilaterally by another Member State in order to escape its obligations under the Treaty.
79. However, it cannot be excluded that a Member State may succeed in ensuring compliance with its obligations under the Treaty through the conclusion of a convention for the avoidance of double taxation with another Member State (see, to that effect, Test Claimants in Class IV of the ACT Group Litigation , paragraph 71).
80. Since the tax system resulting from a convention for the avoidance of double taxation forms part of the legal background to the main proceedings and has been presented as such by the national court, the Court of Justice must take it into account in order to give an interpretation of Community law that is relevant to the national court (see, to that effect, Case C‑265/04 Bouanich  [2006] ECR I‑923, paragraph 51; Test Claimants in Class IV of the ACT Group Litigation , paragraph 71; Denkavit Internationaal and Denkavit France , paragraph 45; and Test Claimants in the Thin Cap Group Litigation , paragraph 54).