Joined Cases C‑504/16 and C‑613/16

Deister Holding AG and Juhler Holding A/S

v

Bundeszentralamt für Steuern

(Requests for a preliminary ruling from the Finanzgericht Köln)

(References for a preliminary ruling — Direct taxation — Freedom of establishment — Directive 90/435/EEC — Article 1(2) — Article 5 — Parent company — Holding company — Withholding tax on profits distributed to a non-resident parent holding company — Exemption — Fraud, tax evasion and abuse — Presumption)

Summary — Judgment of the Court (Sixth Chamber), 20 December 2017

1. Approximation of laws—Common system of taxation applicable in the case of parent companies and subsidiaries of different Member States—Directive 90/435—No exhaustive harmonisation—Possibility of assessing the compatibility of national legislation in the same field on the basis of primary law

   (Council Directive 90/435, as amended by Directive 2006/98, Art. 1(2))

2. EU law—Interpretation—Texts in several languages—Differences between the various language versions—Irrelevant

   (Council Directive 90/435, as amended by Directive 2006/98, Art. 1(2))

3. Approximation of laws—Common system of taxation applicable in the case of parent companies and subsidiaries of different Member States—Directive 90/435—Exemption, in the Member State of the subsidiary, from withholding tax on profits distributed to the parent company—Dividends distributed by a resident subsidiary to a non-resident parent company—General rules of exemption from withholding tax—Exception to those rules in cases of abuse or fraud—Shares in the parent company held by persons not entitled to such an exemption—National legislation excluding as a general rule the exemption to such persons—Irrebuttable presumption of fraud or abuse—Not permissible

   (Art. 49 TFEU; Council Directive 90/435, as amended by Directive 2006/98, Arts 1(2) and 5(1))

1.  See the text of the decision.

   (see paras 45, 46)

2.  See the text of the decision.

   (see paras 54-57)

3.  Article 1(2) in conjunction with Article 5(1) of Council Directive 90/435/EEC of 23 July 1990 on the common system of taxation applicable in the case of parent companies and subsidiaries of different Member States, as amended by Council Directive 2006/98/EC of 20 November 2006 and Article 49 TFEU must be interpreted as precluding a Member State’s tax legislation, such as that at issue in the main proceedings, which, where persons have holdings in a non-resident parent company who would not be entitled to the refund or exemption from withholding tax if they received the dividends from a resident subsidiary directly, denies, provided one of the conditions set by that legislation is satisfied, relief from tax on income from capital tax on distributions of profits to that parent company.

   In that regard, the Court notes, first, that, by subjecting the grant of that exemption to such a requirement, without the tax authorities being required to provide prima facie evidence of the absence of economic reasons or of fraud or abuse, the legislation introduces, as is clear from paragraph 62 above, a general presumption of fraud or abuse and thus undermines the objective pursued by the Parent-Subsidiary Directive, in particular Article 5(1) thereof, to prevent double taxation of dividends distributed by a resident subsidiary to its non-resident parent company by the Member State of that subsidiary’s residence, in order to facilitate the cooperation and grouping together of companies at EU level.

   In that regard, it should be noted that the Parent-Subsidiary Directive does not contain any requirement as to the nature of the economic activity of companies falling within its scope or the amount of turnover resulting from those companies’ own economic activity.

   The fact that the economic activity of a non-resident parent company consists in the management of its subsidiaries’ assets or that the income of that company results only from such management cannot per se indicate the existence of a wholly artificial arrangement which does not reflect economic reality. In that context, the fact that the management of assets is not considered to constitute an economic activity for the purposes of value-added tax is irrelevant, since the tax at issue in the main proceedings and value-added tax are governed by distinct legal regimes, each pursuing difference objectives.

   In addition, contrary to what the legislation at issue in the main proceedings provides, the finding of such an arrangement requires that, on a case-by-case basis, an overall assessment of the relevant situation be conducted, based on factors including the organisational, economic or other substantial features of the group of companies to which the parent company in question belongs and the structures and strategies of that group.

   As regards the comparability of the situation of a resident company and that of a non-resident company in receipt of dividends from a resident subsidiary, it should be noted that the exemption of profits distributed by a subsidiary to its parent company from withholding tax seeks, as was mentioned in paragraph 50 of the judgment, to avoid double taxation or a series of charges to tax on those profits.

   Although the Court considered, as regards measures provided for by a Member State in order to prevent or mitigate a series of charges to tax or the double taxation of profits distributed by a resident company, that 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, it also stated that, since a Member State exercises its power to tax not only over the income of resident shareholders, but also over that of non-resident shareholders, from dividends which they receive from a resident company, the situation of those non-resident shareholders becomes comparable to that of the resident shareholders (judgment of 7 September 2017, Eqiom and Enka, C‑6/16, EU:C:2017:641, paragraph 59 and the case-law cited).

   (see paras 69, 72-74, 92, 93, 100, operative part)