Belgische Staat v Cobelfret NV.
Date: 2009-02-12
20. According to Article 1 of Directive 90/435, the latter applies to distributions of profits received by companies of one Member State which come from their subsidiaries in other Member States. In addition, Article 2 of Directive 90/435 defines its scope in relation to the forms of companies listed in the annex thereto, while Article 3(1) lays down the minimum holding necessary to enable one company to be considered a parent company and the other company to be considered a subsidiary within the meaning of Directive 90/435.
23. If it is for the national court, and not the Court of Justice, to determine whether those facts are correct (Case 104/77 Oehlschläger  [1978] ECR 791, paragraph 4), it is also for the national court alone, within the framework of the cooperation between the Court of Justice and national courts and tribunals established by Article 234 EC, to determine, in the light of the particular circumstances of the case, 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, Case C-17/03 VEMW and Others  [2005] ECR I-4983, paragraph 34 and the case-law cited).
24. The presumption of relevance which attaches to questions referred by national courts for a preliminary ruling can be rebutted only in exceptional cases, in particular where it is quite obvious that the interpretation of Community law sought bears no relation to the actual facts of the main action or to its purpose (see Case C‑500/06 Corporación Dermoestética  [2008] ECR I-0000, paragraph 23 and the case-law cited).
28. As is particularly apparent from the third recital in the preamble to Directive 90/435, the aim of the directive 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 (see Case C‑27/07 Banque Fédérative du Crédit Mutuel  [2008] ECR I-0000, paragraph 23 and the case-law cited).
29. 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, in economic terms, 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, to that effect, Banque Fédérative du Crédit Mutuel , paragraphs 24 and 27).
30. To that end, Article 4(1) of Directive 90/435 provides that, where a parent company, by virtue of its association with its subsidiary, receives distributed profits, the Member State in which the parent company is established must either refrain from taxing such profits or authorise the parent company to deduct from the amount of tax payable that fraction of the corporation tax paid by the subsidiary which relates to those profits and if appropriate, the amount of the withholding tax levied by the Member State in which the subsidiary is resident, up to the limit of the amount of the corresponding domestic tax ( Banque Fédérative du Crédit Mutuel , paragraph 25).
31. The Court has already held that Article 4(1) of Directive 90/435 expressly leaves it open to Member States to choose between the exemption system and the imputation system, which, in the case of shareholders receiving those dividends, do not necessarily lead to the same result (see, to that effect, Case C‑446/04 Test Claimants in the FII Group Litigation [2006] ECR I‑11753, paragraphs 43 and 44).
39. It is evident from the file submitted to the Court that, in principle, Belgian tax legislation allows losses to be carried forward to subsequent tax years. Consequently, the reduction of losses to the parent company which could benefit from being thus carried forward up to the amount of the dividends received has an effect on the basis of assessment of that company during the tax year which follows that in which those dividends were received in so far as its profits exceed the losses which can be carried forward. Following the reduction in the losses which can be carried forward, that basis of assessment is increased.
40. It follows that, even if the dividends received by the parent company are not subject to corporation tax for the tax year in the course of which those dividends were distributed, that reduction of losses of the parent company may have the effect that the parent company is subject indirectly to taxation on those dividends in subsequent tax years when its results are positive.
43. As the Advocate General has indicated in point 28 of her Opinion, there is nothing in the scheme or purpose of Directive 90/435 to suggest that there is any significant difference between the concepts of ‘refraining from taxing’ and ‘exempting’ the profits received by the parent company, as the Court has used the concept of ‘exempting’ interchangeably with that of ‘refrain[ing] from taxing’ within the meaning of Article 4(1) (see, inter alia, Case C‑374/04 Test Claimants in Class IV of the ACT Group Litigation  [2006] ECR I‑11673, paragraph 53; Test Claimants in the FII Group Litigation , paragraphs 44 and 102; and Banque Fédérative du Crédit Mutuel , paragraph 44).
49. On the other hand, it follows from the Court’s case-law that a Member State which has failed to transpose the provisions of a directive into national law cannot rely, as against Community citizens, upon limitations that might have been laid down on the basis of those provisions (see Case C-184/04 Uudenkaupungin kaupunki  [2006] ECR I‑3039, paragraph 28 and the case-law cited).
55. Suffice it to indicate in this regard that, in the absence of an express indication to the contrary, a Community act such as Directive 90/435 must be interpreted in the context of the sources of Community law and of the Community legal order itself (see, to that effect, Case 12/73 Muras  [1973] ECR 963, paragraph 7).
56. It is only in the absence of unifying or harmonising Community measures that it is for the Member States, which 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, to take the measures necessary to that end by applying, in particular, the apportionment criteria followed in international tax practice, including the model conventions drawn up by the OECD (see, to that effect, Case C‑524/04 Test Claimants in the Thin Cap Group Litigation  [2007] ECR I‑2107, paragraph 49 and the case-law cited). That is not the situation in the present case.
58. According to settled case-law of the Court, whenever the provisions of a directive appear, so far as their subject-matter is concerned, to be unconditional and sufficiently precise, they may be relied on before the national courts by individuals against the State where the latter has failed to implement the directive in domestic law by the end of the period prescribed or where it has failed to implement the directive correctly (see, inter alia, Joined Cases C-6/90 and C-9/90 Francovich and Others  [1991] ECR I-5357, paragraph 11; Case C-62/00 Marks & Spencer  [2002] ECR I-6325, paragraph 25; and Joined Cases C-397/01 to C‑403/01 Pfeiffer and Others  [2004] ECR I-8835, paragraph 103).
61. In this regard, it is consistent case-law of the Court that the right given to Member States to choose among several possible means of achieving the result required by a directive does not preclude the possibility for individuals to enforce before the national courts rights the content of which can be determined with sufficient precision on the basis of the provisions of the directive alone (see, inter alia, Francovich and Others,  paragraph 17, and Case C‑226/07 Flughafen Köln/Bonn  [2008] ECR I-0000, paragraph 30).
68. According to settled case-law, it is only exceptionally that the Court may, in application of the general principle of legal certainty inherent in the Community legal order, be moved to restrict for any person concerned the opportunity of relying on a provision which it has interpreted with a view to calling in question legal relationships established in good faith. Two essential criteria must be fulfilled before such a limitation can be imposed, namely that those concerned should have acted in good faith and that there should be a risk of serious difficulties (see Case C‑313/05 Brzeziński  [2007] ECR I‑513, paragraph 56 and the case-law cited).