Argenta Spaarbank NV v Belgische Staat.
Date: 2017-10-26
30


According to its actual terms, that provision does not establish a general exception to the application of Directive 90/435, but merely provides an option for Member States, which is for those which wish to make use of it to implement in their national law. In that regard, it is necessary to note that, according to settled case-law of the Court, the provisions of a directive must be implemented with unquestionable binding force and with the specificity, precision and clarity necessary to satisfy the requirements of legal certainty (see judgment of 15 October 2015, Commission v Germany, C‑137/14, EU:C:2015:683, paragraph 51 and the case-law cited).
37


According to settled case-law of the Court, in the context of the cooperation between the Court and the national courts provided for by Article 267 TFEU, it is solely for the national court before which the 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, 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 (judgments of 22 December 2008, Les Vergers du Vieux Tauves, C‑48/07, EU:C:2008:758, paragraph 16, and of 21 December 2016, Vervloet and Others, C‑76/15, EU:C:2016:975, paragraph 56 and the case-law cited).
38


In addition, it should be noted that it is not for the Court, in the context of a request for a preliminary ruling, to give a ruling on the interpretation of provisions of domestic law and to decide whether the interpretation given by the national court of those provisions is correct. The Court must take account, under the division of jurisdiction between the European Union Courts and the national courts, of the factual and legislative context in which the questions put to it are set, as described in the order for reference (judgment of 23 April 2009, Angelidaki and Others, C‑378/07 to C‑380/07, EU:C:2009:250, paragraph 48 and the case-law cited).
43


In order to provide a useful answer to that question, it is necessary, according to settled case-law of the Court, to take account of the wording of Article 4(2) of Directive 90/435, as well as of the objectives and scheme of that directive (see, to that effect, judgments of 3 April 2008, Banque Fédérative du Crédit Mutuel, C‑27/07, EU:C:2008:195, paragraph 22; of 1 October 2009, Gaz de France — Berliner Investissement, C‑247/08, EU:C:2009:600, paragraph 26, and of 8 March 2017, Wereldhave Belgium and Others, C‑448/15, EU:C:2017:180, paragraph 24).
47


In that regard, it must be recalled that Directive 90/435, as its third recital indicates, seeks, 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 EU level. That directive thus seeks to ensure the neutrality, in fiscal terms, of the distribution of profits by a subsidiary established in one Member State to its parent company established in another Member State (judgments of 1 October 2009, Gaz de France — Berliner Investissement, C‑247/08, EU:C:2009:600 paragraph 27, and of 8 March 2017, Wereldhave Belgium and Others, C‑448/15, EU:C:2017:180, paragraph 25).
48


Thus, the objective of that directive is to prevent double taxation of profits distributed by subsidiary companies to parent companies, through the mechanisms laid down in Article 4(1) and Article 5(1) of that directive, by ensuring that distributed profits are not taxed once at the subsidiary level and again at the parent-company level (see, to that effect, judgments of 3 April 2008, Banque Fédérative du Crédit Mutuel, C‑27/07, EU:C:2008:195, paragraph 27; of 12 February 2009, Cobelfret, C‑138/07, EU:C:2009:82, paragraph 29; of 1 October 2009, Gaz de France — Berliner Investissement, C‑247/08, EU:C:2009:600, paragraph 57, and of 8 March 2017, Wereldhave Belgium and Others, C‑448/15, EU:C:2017:180, paragraph 36).
49


With particular regard to Article 4(1) of Directive 90/435, that provision provides that, where a parent company, by virtue of its association with its subsidiary, receives distributed profits, the Member State of the parent company is required either to refrain from taxing such profits or to 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 (judgments of 12 December 2006, Test Claimants in the FII Group Litigation, C‑446/04, EU:C:2006:774, paragraph 102; of 3 April 2008, Banque Fédérative du Crédit Mutuel, C‑27/07, EU:C:2008:195, paragraph 25, and of 8 March 2017, Wereldhave Belgium and Others, C‑448/15, EU:C:2017:180, paragraph 37).
51


In that context, first, it should be pointed out that that provision must be interpreted strictly and therefore, according to settled case-law of the Court, cannot be given an interpretation going beyond its actual words (see, to that effect, judgments of 17 October 1996, Denkavit and Others, C‑283/94, C‑291/94 and C‑292/94, EU:C:1996:387, paragraph 27, and of 25 September 2003, Océ Van der Grinten, C‑58/01, EU:C:2003:495, paragraph 86).
54


The option granted to Member States by that provision seeks to prevent a parent company from benefiting from a double tax advantage arising, first, from profits that are tax-exempt pursuant to the first indent of Article 4(1) of Directive 90/435 and, second, from the tax reduction by means of the deduction by virtue of charges relating to holding losses resulting from the distribution of such profits (see, to that effect, judgment of 22 December 2008, Les Vergers du Vieux Tauves, C‑48/07, EU:C:2008:758, paragraph 42).
60


As the Advocate General has observed in point 51 of her Opinion, Article 1(2) of Directive 90/435 reflects the general EU law principle that abuse of rights is prohibited (judgment of 5 July 2007, Kofoed, C‑321/05, EU:C:2007:408, paragraph 38), and that EU law therefore cannot be relied on for abusive or fraudulent ends (see, inter alia, to that effect, judgments of 21 February 2006, Halifax and Others, C‑255/02, EU:C:2006:121, paragraph 69, and of 28 July 2016, Kratzer, C‑423/15, EU:C:2016:604, paragraph 37).
61


Nonetheless, it must be noted that, as the Advocate General also made clear in point 52 of her Opinion, Article 1(2) of Directive 90/435 is a provision of principle, the content of which is explained in detail in other provisions of that directive, inter alia in Article 4(2), in that it seeks in particular to counteract abuse by parent companies resulting from a double tax deduction (see, by analogy, judgment of 17 October 1996, Denkavit and Others, C‑283/94, C‑291/94 and C‑292/94, EU:C:1996:387, paragraph 31).