Reference for a preliminary ruling from the Hof van beroep te Antwerpen (Belgium) lodged on 9 March 2007 — Belgische Staat v N.V. Cobelfret

(Case C-138/07)

(2007/C 117/22)

Language of the case: Dutch

Referring court

Hof van beroep te Antwerpen

Parties to the main proceedings

Appellant: Belgische Staat

Respondent: N.V. Cobelfret

Question referred

Is a set of rules such as the Belgian system of definitive taxed income, under which relevant dividends are, first, added to the taxable basis of the parent company and, subsequently, the amount of those received dividends is, pursuant to Article 205(2) of the Belgian Income Tax Code, deducted from the taxable basis of the parent company (in the amount of 95 %) only in so far as the parent company has taxable profits, compatible with Article 4 of Council Directive 90/435/EEC (1) of 23 July 1990 on the common system of taxation applicable in the case of parent companies and subsidiaries of different Member States, inasmuch as the result of such a restriction on deductibility from definitively taxed income is that a parent company will, in a subsequent taxable period, be taxed on the dividends received in the case where it had no, or had inadequate, taxable profits over the taxable period in which the dividends were received, or at least that the fiscal losses relating to the taxable period are wrongly used up and are, as a result, no longer transferable up to the amount of received dividends, which, in the absence of fiscal losses, ought in any case to have been exempted up to 95 %?

(1)  OJ 1990 L 225, p. 6.