1.

By its action, the European Commission asks the Court to declare that the French Republic has maintained discriminatory and disproportionate treatment between French parent companies which receive dividends from French subsidiaries and those which receive dividends from foreign subsidiaries in breach of EU law, as interpreted by the Court in the judgment of 15 September 2011, Accor (C‑310/09, EU:C:2011:581).

2.

As it itself summarises in its application, the Commission claims that the French Republic has refused to give full effect to the judgment of 15 September 2011, Accor (C‑310/09, EU:C:2011:581), through the case-law of its highest administrative court, that is the Conseil d’État (Council of State, France). According to the Commission, the judgments given by the Conseil d’État following the judgment of 15 September 2011, Accor (C‑310/09, EU:C:2011:581) form the case-law in accordance with which all applications for reimbursement of the advance payment illegally made which have been submitted by parties in a situation similar to that of Accor SA will be analysed.

3.

The Commission’s action therefore requires the Court to give a ruling on two separate issues: first, the compatibility with EU law, as interpreted by the judgment of 15 September 2011, Accor (C‑310/09, EU:C:2011:581), of the procedures for reimbursement of the advance payment made on account of the receipt of dividends paid by non-resident subsidiaries and, second — and for the first time in the context of an action for failure to fulfil obligations —, the breach of the obligation to make a reference for a preliminary ruling by a court against whose decisions there is no remedy. ( 2 )

4.

Under Article 158bis(I) of the Code général des impôts (General Tax Code, ‘the CGI’), in the version in force in the tax years at issue in the case which gave rise to the judgment of 15 September 2011, Accor (C‑310/09, EU:C:2011:581):

‘Persons who receive dividends distributed by French companies shall be deemed in that respect to have received income in the form of:

That tax credit shall be equal to half of the actual payments made by the company.

…’

5.

Article 146(2) of the CGI, in the version in force during the tax years at issue in the case which gave rise to the judgment of 15 September 2011, Accor (C‑310/09, EU:C:2011:581), provided:

‘Where distributions made by a parent company give rise to the application of the advance payment provided for in Article 223sexies, that advance payment shall be reduced, where appropriate, by the amount of the tax credits which are applied to the income from shareholdings … received in the course of tax years which ended within the last 5 years at most.’

6.

The first subparagraph of Article 223sexies(1) of the CGI, as amended by Finance Law No 98-1266 of 30 December 1998 for 1999, ( 3 ) applicable to dividend distributions paid from 1 January 1999, provided:

‘Subject to the provisions of Articles 209quinquies and 223(H), where the profits distributed by a company are subject to a deduction on the ground that that company has not been subject to corporation tax at the normal rate provided for in the second subparagraph of Article 229(I), that company is required to make an advance payment equal to the tax credit calculated under the conditions provided for in Article 158bis(I).’

7.

By a complaint of 21 December 2001, Accor had requested from the French tax authority the reimbursement of the advance payment made on receipt of dividends paid by its subsidiaries established in other Member States in the course of the years 1998 to 2000. Since this type of reimbursement is granted by the legislation in force only in respect of the receipt of dividends from a subsidiary located in French territory, the application was rejected.

8.

Following that refusal, Accor brought proceedings before the Tribunal administratif de Versailles (Administrative Court, Versailles, France), which upheld Accor’s application in its entirety. The appeal brought by the Ministre du Budget, des Comptes publics et de la Fonction publique (Minister for the Budget, Public Accounts and the Civil Service) against that judgment having been dismissed by a judgment of the Cour administrative d’appel de Versailles (Administrative Court of Appeal, Versailles, France), the Minister brought an appeal in cassation before the Conseil d’État. By a judgment of 3 July 2009, that court then made a reference to the Court for a preliminary ruling.

9.

In its judgment of 15 September 2011, Accor (C‑310/09, EU:C:2011:581), the Court found that, by contrast with dividends originating from resident subsidiaries, the French legislation did not permit account to be taken of taxation at the level of the non-resident distributing subsidiary, whilst dividends received both from resident subsidiaries and from non-resident subsidiaries were subject to the advance payment when redistributed. ( 4 ) In addition, according to the Court, in view of the unfavourable treatment applied to dividends received from a subsidiary established in another Member State as compared to that applied to dividends received from a resident subsidiary, a parent company might have been dissuaded from carrying on its activities through the intermediary of subsidiaries established in other Member States. ( 5 )

10.

The Court went on to recall its case-law in accordance with which, when the profits underlying foreign-sourced dividends are subject in the State of the company making the distribution to a lower level of tax than the tax levied in the Member State of the recipient company, that Member State must grant an overall tax credit corresponding to the tax paid by the company making the distribution in the State in which it is established, whereas where those profits are subject in the State of the company making the distribution to a higher level of tax than the tax levied by the Member State of the company receiving them, that Member State is obliged to grant a tax credit only up to the limit of the amount of corporation tax for which the company receiving the dividends is liable. ( 6 )

11.

The Court inferred from the foregoing that, as regards the French regime at issue, if a Member State were to grant recipients of dividends from a company established in another Member State a tax credit which was always equal to half of those dividends, that would amount to granting those dividends more favourable treatment than that received by dividends from the first Member State, where the rate of tax to which the company distributing those dividends is liable in the State in which it is established is lower than the rate of tax applied in the first Member State. ( 7 )

12.

It held that, consequently, a Member State had to be in a position to determine the amount of the corporation tax paid in the Member State in which the distributing company is established that must be the subject of the tax credit granted to the parent company; in those circumstances, it found that it was not sufficient to provide evidence that the distributing company had been taxed, in the Member State in which it is established, on the profits underlying the dividends distributed, without providing information relating to the nature and rate of the tax actually charged on those profits. ( 8 )

13.

With that in mind, the Court added that the evidence required should enable the tax authorities of the Member State of taxation to ascertain, clearly and precisely, whether the conditions for obtaining a tax advantage were met. It did, however, clarify that the evidence did not need to take any particular form and the assessment did not have to be conducted too formalistically. In addition, the request for production of that information had to be made within the statutory period for retention of administrative documents and accounts laid down by the law of the Member State in which the subsidiary is established, ( 9 ) since the taxpayer should not be required to provide documents ‘covering a period significantly longer than the statutory period for retention of administrative documents and accounts’. ( 10 )

14.

It is for those reasons that the Court ruled that:

…

15.

Following receipt of the judgment of 15 September 2011, Accor (C‑310/09, EU:C:2011:581), the Conseil d’État delivered two judgments in which it laid down a series of conditions under which the advance payments made in breach of EU law could be reimbursed. The judgments in question are those of 10 December 2012, Rhodia ( 11 ) and Accor ( 12 ) (‘the judgments of the Conseil d’État’).

16.

With regard, first, to the scope of the reimbursement of the advance payments, the judgments of the Conseil d’État state that:

17.

With regard, second, to the evidence supporting the applications for reimbursement, the judgments acknowledge:

18.

Following the judgments of the Conseil d’État, the Commission received several complaints concerning the conditions for reimbursement of the advance payment. Those complaints were the subject of an exchange of information between the Commission’s services and the competent authorities of the French Republic in the context of procedure EU Pilot 5511/13 TAXU.

19.

Since the outcome of those exchanges was unsatisfactory in the Commission’s view, it decided to initiate the infringement proceedings provided for in Article 258 TFEU. It is for that reason that on 27 November 2014 the Commission sent the French Republic a letter of formal notice in which it identified the requirements stemming from the judgments of the Conseil d’État which were liable to constitute breaches of EU law.

20.

In a response of 26 January 2015, the French Republic disputed the complaints levelled against it. Taking the view the responses provided were unsatisfactory, the Commission sent a reasoned opinion to the French Republic on 29 April 2016; the Commission ordered the French Republic to take the steps necessary to comply with that opinion within 2 months of the date of its receipt.

21.

As the French Republic maintained its position, the Commission decided to bring the present action for failure to fulfil obligations on the basis of Article 258 TFEU.

22.

In the written procedure, the French Republic lodged a defence, to which the Commission responded by lodging a reply. The French Republic also lodged a rejoinder. In addition, they also had the opportunity of presenting their oral observations at a hearing held on 20 June 2018.

23.

The Commission bases its action on four complaints. The first three relate to the restrictions stemming from the judgments of the Conseil d’État which are contrary to EU law as interpreted by the Court in the judgment of 15 September 2011, Accor (C‑310/09, EU:C:2011:581). The fourth complaint concerns the obligation on the Conseil d’État, as a court adjudicating at last instance, to make a request for a preliminary ruling for the interpretation of EU law.

24.

According to the Commission, it is apparent from the judgments of the Conseil d’État that the French authorities refuse to take into account, for the purposes of reimbursement of the advance payment, the taxation borne by non-resident sub-subsidiaries. However, where the chain of interests is purely within the French Republic, the dividends paid by a sub-subsidiary to the intermediate company conferred entitlement to a tax credit intended to offset the advance payment in its entirety when that same income is redistributed. If the intermediate company were to distribute those dividends to its parent company, that new distribution again gave rise to a tax credit applied to the dividends and intended to offset the advance payment payable in the same way on redistribution by the parent company. The economic double taxation was therefore completely neutralised.

25.

This results in a difference in treatment according to the location of the distributing sub-subsidiary’s registered office, since there is complete neutralisation of economic double taxation only where the sub-subsidiary is established in French territory. In addition, in the Commission’s view, there is no objective reason which would justify the French Republic not neutralising the involvement of the intermediate company on the ground that the source of the dividends is outside France.

26.

The French Government does not dispute that, in accordance with the judgments of the Conseil d’État, the system for reimbursement of the advance payment does not allow the taxation of dividends distributed by a sub-subsidiary to a non-resident subsidiary to be neutralised. However, it claims that the national system to eliminate double taxation guarantees the prevention of such taxation only at the level of each distributing company. In addition, each Member State is free to organise its system of taxation as long as that system does not entail discrimination. That being the case, Member States are not obliged to adapt their own tax system to those of the other Member States.

27.

In the present case, the French tax legislation does not allow the taxation payable by a parent company to be set off against the taxes paid by its resident sub-subsidiaries. The tax credit is granted to the parent company solely on account of the tax charged on the profits of the distributing subsidiary. Accordingly, France is under no obligation to ensure that account is taken, when calculating the reimbursement of the advance payment unduly made, of the taxation borne by the non-resident sub-subsidiaries distributing dividends. The fact that the distribution of the dividends from a sub-subsidiary to a subsidiary has been taxed is the result of the application of tax legislation from outside the French Republic, which it is not for it to correct.

28.

Furthermore, since the French system for the elimination of double taxation is silent on the issue of sub-subsidiaries, the tax collected when dividends are distributed may be set off only in respect of the company which receives those dividends. The French system must thus be distinguished from the UK system of advance corporation tax at issue in the cases giving rise to the judgments of 12 December 2006, Test Claimants in the FII Group Litigation (C‑446/04, EU:C:2006:774) and of 13 November 2012, Test Claimants in the FII Group Litigation (C‑35/11, EU:C:2012:707). Unlike the UK system at issue in the cases which gave rise to those judgments, the French scheme at issue does not take account of the tax charged on sub-subsidiaries, whether or not they are resident companies; the scheme is based on an approach consisting in offsetting the tax charged at each level and not on a group taxation approach.

29.

In response to the first question referred for a preliminary ruling which had been submitted to it by the Conseil d’État in the case which gave rise to the judgment of 15 September 2011, Accor (C‑310/09, EU:C:2011:581), the Court held that ‘Articles 49 TFEU and 63 TFEU preclude legislation of a Member State intended to eliminate economic double taxation of dividends … which allows a parent company to set off against the advance payment, for which it is liable when it redistributes to its shareholders dividends paid by its subsidiaries, the tax credit applied to the distribution of those dividends if they originate from a subsidiary established in that Member State, but does not offer that option if those dividends originate from a subsidiary established in another Member State, since, in that case, that legislation does not give entitlement to a tax credit applied to the distribution of those dividends by that subsidiary’.

30.

Relying on the fact that EU law, as it currently stands, does not lay down any general criteria for the attribution of areas of competence between the Member States in relation to the elimination of double taxation within the European Union, ( 17 ) the French Republic proposes a formalistic, restrictive and, in my view, incorrect application of the answer given to the first question in the case which gave rise to the judgment of 15 September 2011, Accor (C‑310/09, EU:C:2011:581).

31.

It is true that a Member State is not obliged to adapt its own tax system to the different systems of tax of the other Member States in order, inter alia, to eliminate double taxation, so long as its rules are not discriminatory. ( 18 ) However, in the present case, in a purely national situation, the absence of double taxation on the part of the parent company is attributable simply to the successive grant, at all ‘links’ in the chain of interests of companies established in France, of a tax credit intended to offset in its entirety the advance payment payable on redistribution of the same income.

32.

Accordingly, although it is true that the taxes paid by sub-subsidiaries established in France also may not be set off directly against the corporation tax paid by a parent company, such offsetting however proves unnecessary having regard to the applicable tax system as a whole.

33.

The lack of discrimination relied on by the French Republic is therefore quite clearly the result of an artificial, or at the very least formalistic, reading — since it is focussed exclusively on the last link in the chain of taxation — of the tax system criticised by the Court in the judgment of 15 September 2011, Accor (C‑310/09, EU:C:2011:581).

34.

In addition, it is clear from the case-law of the Court that a Member State is not obliged to offset the tax burden resulting from the exercise of the tax powers of another Member State or of a third State, provided that it does not exercise a power of taxation over the incoming dividends — either by taxing them or by taking them into account in a different way — as regards the company receiving them. However, when that same Member State elects to tax those dividends, it must take into account, within the limits of its own taxation, the tax burden resulting from the exercise of the tax powers of the other Member State. ( 19 )

35.

I cannot agree with the French Republic in this regard where it states that the Court confined itself, in the judgment of 13 November 2012, Test Claimants in the FII Group Litigation (C‑35/11, EU:C:2012:707), to finding the UK legislation to be discriminatory without laying down the requirement to take account of the taxation borne by sub-subsidiaries in any mechanism for the elimination of double taxation.

36.

As the French Republic itself states, that judgment follows on from an initial judgment of the Court in which it had observed, in general and abstract terms, without referring to the UK legislation at issue, that, ‘whatever the mechanism adopted for preventing or mitigating the imposition of a series of charges to tax or economic double taxation, the freedoms of movement guaranteed by the Treaty preclude a Member State from treating foreign-sourced dividends less favourably than nationally sourced dividends, unless such a difference in treatment concerns situations which are not objectively comparable or is justified by overriding reasons in the general interest’. ( 20 )

37.

The fact that the UK tax system at issue in those cases provided for a system of exemption for dividends paid by resident companies and a system of offsetting for dividends paid by non-resident companies, whereas the French scheme provides for a system of offsetting regardless of the origin of the dividends distributed and the taxation in full of the dividends distributed, coupled with a tax credit, on every distribution and redistribution of dividends, is irrelevant.

38.

The principle recalled in the judgment of 12 December 2006, Test Claimants in the FII Group Litigation (C‑446/04, EU:C:2006:774), which has been re-confirmed since then, is indeed that dividends paid to residents by non-resident companies must be accorded equivalent treatment where the Member State has a system for preventing or mitigating the imposition of a series of charges to tax or economic double taxation as regards dividends paid to residents by resident companies. ( 21 )

39.

In those circumstances, the Court held that ‘Articles [49 TFEU and 63 TFEU] preclude legislation of a Member State which allows a resident company receiving dividends from another resident company to deduct from the amount which the former company is liable to pay by way of advance corporation tax the amount of that tax paid by the latter company, whereas no such deduction is permitted in the case of a resident company receiving dividends from a non-resident company as regards the corresponding tax on distributed profits paid by the latter company in the State in which it is resident’. ( 22 )

40.

The Court was particularly clear in the grounds of the judgment and the answer given to the second and fourth questions referred in the case which gave rise to the judgment of 13 November 2012, Test Claimants in the FII Group Litigation (C‑35/11, EU:C:2012:707): Articles 49 TFEU and 63 TFEU preclude legislation of a Member State which, as regards foreign-sourced dividends alone, does not take account of the tax paid on the distributed profits. ( 23 ) In that regard, the important point is indeed the taxation of those profits and not the fact that the non-resident company which pays dividends to its resident parent company is itself liable for corporation tax. ( 24 )

41.

It follows from the foregoing that, by refusing to take account of the taxation borne by sub-subsidiaries established in a Member State other than France even though the mechanism applicable to sub-subsidiaries established in France allowed them to pay to the recipient intermediate company dividends exempted from the cost of the tax charged on them, the French Republic perpetuates the discrimination found to exist by the Court in the judgment of 15 September 2011, Accor (C‑310/09, EU:C:2011:581).

42.

The Commission divides its second complaint into three parts.

43.

In the first part, the Commission takes the view that the judgments of the Conseil d’État require that the accounting documents relating to the dividends distributed are consistent with the minutes of general meetings of the subsidiaries recording the profits made in the form of distributable dividends. In the case of the majority of the subsidiaries not established in France, the general meeting minutes record the distribution of a ‘distributable profit’ resulting from an accounting aggregate which includes all previous sums carried forward which were not distributed and the result of the previous financial year. In those circumstances, it is very difficult, if not impossible, to determine whether the dividend distributed originates from a particular accounting result.

44.

In the second part, the Commission criticises the judgments of the Conseil d’État for making the right to reimbursement of the advance payment subject to the submission of a previous advance payment declaration in which the amounts of the advance payment paid in respect of redistributions of dividends are identified. However, since resident companies could not be granted a tax credit in respect of the advance payment payable on account of the distribution of dividends from a non-resident subsidiary, those companies could not be required to have recorded those dividends in their advance payment declaration. By taking as a basis the choices made by a parent company when making the advance payment, the judgments of the Conseil d’État do not comply with the obligations stemming from the principles of equivalence and effectiveness which govern the national procedures for the reimbursement of national taxes collected in breach of EU law.

45.

In the third part, the Commission disputes the restriction based on the requirement to produce supporting documents beyond the statutory period for retention. By having stated that the expiry of the statutory period for retention of the documents did not exempt the company seeking reimbursement of the advance payment illegally made from its obligation to produce all evidence capable of demonstrating that its application is well founded, the judgments of the Conseil d’État are at odds with the principle of effectiveness.

46.

As a preliminary point, the French Government observes that the judgment of 15 September 2011, Accor (C‑310/09, EU:C:2011:581), expressly stated that reimbursements of the advance payment were conditional upon the applicant companies providing evidence, by any means, of the taxes paid by their subsidiaries in the Member State in which they are established. In that context, the judgments of the Conseil d’État are marked by a particularly flexible approach, since they accepted any form of documents which allows the companies to show the tax rate to which their non-resident subsidiaries were subject.

47.

With regard to the first part of the second complaint, the French Government states that the judgments of the Conseil d’État did not require proof that the taxation in respect of which offsetting was sought had been charged on dividends corresponding to a particular financial year. The taxation was thus deemed to have been paid on account of the dividends taken as a whole, regardless of the financial years from which they originated.

48.

In addition, the fact that, in the cases which led to the adoption of the judgments of the Conseil d’État, that court relied on the minutes of general meetings of non-resident subsidiaries, stems from the fact that such documents were submitted by the companies concerned to prove the tax rate charged on the dividends distributed.

49.

With regard to the second part of the second complaint, the French Government points out that all the distributions of dividends, whether they involved dividends from French subsidiaries or from non-resident subsidiaries, had to be recorded in the advance payment declarations. In addition, since the advance payment is payable only in the event of redistribution, the dividends in respect of which proof of the amount of taxation is required are necessarily those which were so redistributed.

50.

As for the third part of the second complaint, the judgments of the Conseil d’État did not require that supporting evidence be produced beyond the statutory period for their retention. The Conseil d’État based its assessment on the documents submitted by the companies concerned, which included such supporting evidence.

51.

In any event, it is for a taxpayer who has submitted a tax claim to retain the documents required to prove that his application is well founded until the outcome of the administrative and litigation procedures, regardless of the statutory period for retention of such documents.

52.

According to the Commission, the judgments of the Conseil d’État require that the accounting documents relating to the dividends distributed are consistent with the minutes of general meetings of the subsidiaries recording the profits made in the form of distributable dividends.

53.

I do not agree with that interpretation of the judgments in question. Although it is true that the Conseil d’État does refer to the fact that it is impossible to rely on taxation which cannot be linked to the sums stated in the minutes of general meetings of the distributing subsidiaries, it does so to set out the view taken by the Minister. ( 25 ) Nor does it follow from the judgments of the Conseil d’État that the submission of such documents is the result of a binding request made by that court.

54.

In any event, although the minutes of general meetings were used by the Conseil d’État, it appears that they were part of a body of evidence. ( 26 ) The decisions of the administrative courts cited by way of examples by the French Republic in its rejoinder support this interpretation of the judgments of the Conseil d’État. The first part of the second complaint therefore appears to me to be unfounded.

55.

The Commission takes the view that, by relying on the choices made by a parent company when making the advance payment at the time of submission of the declaration relating to that payment, the judgments of the Conseil d’État do not comply with the obligations stemming from the principles of equivalence and effectiveness.

56.

It is not disputed that parent companies established in France were not eligible for the grant of a tax credit on account of the dividends received from their non-resident subsidiaries. However, it is apparent not only from the French Republic’s response to the letter of formal notice of 26 November 2014, but also from the opinion of the rapporteur public on the judgments of the Conseil d’État that parent companies established in France did indeed have to state in their advance payment declaration the dividends from their non-resident subsidiaries. According to the opinion of the rapporteur public, if there were any legal uncertainty that uncertainty related not to the obligation to submit the declaration, but solely to the legal rules governing the distributed dividends.

57.

In addition, reimbursement is possible only if an advance payment was made at the time of a distribution of dividends. In those circumstances, since any dividend distributed necessarily had to be declared, the Conseil d’État did not act contrary to the principles of equivalence and effectiveness where it found that parent companies were not justified in arguing that the advance payment declarations which they had filed could not be relied on against them.

58.

Accordingly, the second part of the second complaint appears to me to be unfounded. The judgment of 8 March 2011, Metallgesellschaft and Others (C‑397/98 and C‑410/98, EU:C:2001:134) relied on by the Commission cannot alter that finding, since the applications which gave rise to that judgment were claims for damages against which the inaction of the taxpayers and their lack of due diligence were raised in opposition.

59.

Finally, the Commission criticises the French Republic for restricting reimbursements of the advance payment by requiring the production of supporting documents beyond the statutory period for their retention.

60.

In the judgments of the Conseil d’État, the view was taken that ‘it is for a company which has submitted a claim for the reimbursement of the advance payment to possess all the evidence capable of demonstrating that its application is well founded throughout the duration of the proceedings, [and] that the expiry of the statutory period for retention of such documents cannot exempt it from that obligation’. ( 27 )

61.

In my view, that approach is not at odds with the limits laid down by the Court in the judgment of 15 September 2011, Accor (C‑310/09, EU:C:2011:581).

62.

In that judgment, the Court accepted that the taxpayer had to provide information relating to the nature and rate of the tax actually charged on the profits underlying the dividends distributed. ( 28 ) In that regard, it made clear that ‘the request for production [of the evidence required had to be] made within the statutory period for retention of administrative documents or accounts, as laid down by the law of the Member State in which the subsidiary is established’. ( 29 ) In the same paragraph, the Court further added that, ‘in order for it to receive the tax credit’, the taxpayer should not be required ‘to provide documents covering a period significantly longer than the statutory period for retention of administrative documents and accounts’.

63.

However, as the French Republic rightly points out in its defence, those clarifications come in the context of the Court’s examination of the principle of effectiveness which concerns, primarily, the administrative authorities of the Member State of taxation. According to the Court, ‘the evidence required should enable the tax authorities of the Member State of taxation to ascertain, clearly and precisely, whether the conditions for obtaining a tax advantage are met’. ( 30 )

64.

In the case of an administrative procedure brought to challenge a decision, I am therefore of the view that the expiry of the statutory period for retention of the relevant documents must be determined at the date on which that pre-litigation procedure is initiated and not at the date of any request relating to those documents by the court before which the matter is subsequently brought. This is, moreover, the only interpretation of the second clarification made by the Court vis-à-vis the expiry of the statutory period for retention of administrative documents and accounts, namely that a taxpayer should not be required ‘to provide documents covering a period significantly longer than the statutory period for retention of administrative documents and accounts’. ( 31 ) If the statutory retention period were a strict time limit to which the courts were likewise subject, how could regard conceivably be had to documents covering a period longer — even if not significantly longer — than the statutory period for retention?

65.

In addition, I also note that the judgments of the Conseil d’État expressly state that, ‘where the person concerned produces evidence or relies on the fact that it is materially impossible to produce evidence, it is for the authorities to adduce evidence to the contrary [and, in such circumstances,] it thus falls to the tax court to make a determination in the light of the preparatory inquiries and to assess, taking into account the arguments of the parties, whether, in the case of the dividend at issue, that person shows that his application for reimbursement is well-founded’. ( 32 )

66.

Like the first two parts, the third part of the second complaint appears to me to be unfounded.

67.

In those circumstances, I take the view that the Commission fails to show that the French Republic made the reimbursement to a parent company of sums intended to guarantee the application of one and the same tax scheme to the dividends distributed by the subsidiaries of that parent company established in France and to those distributed by the subsidiaries of that company established in other Member States subject to rules of evidence contrary to the principles of equivalence and effectiveness.

68.

According to the Commission, it is explicitly clear from the judgments of the Conseil d’État that the amount of the tax credit to be reimbursed to French parent companies which have received dividends from their non-resident subsidiaries is strictly limited to one third of the amount of the dividends received and distributed. By contrast, the amount of the tax credit for dividends distributed by a resident subsidiary is fixed at a flat rate of half the amount of the dividends.

69.

By limiting to one third of the dividends paid by a non-resident subsidiary the reimbursement of the advance payment made on those dividends, the judgments of the Conseil d’État therefore place companies receiving such dividends in a less favourable situation than that of companies receiving them from a resident subsidiary, which means that the discrimination found to exist by the Court in the judgment of 15 September 2011, Accor (C‑310/09, EU:C:2011:581) continues.

70.

The French Government submits that the restriction of the reimbursement of the advance payment to one third of the dividends received corresponds to the amount of the advance payment actually made. The equal treatment of the dividends received by resident and non-resident subsidiaries is thus entirely guaranteed.

71.

In addition, such a cap on the reimbursement of the advance payment allows equal account to be taken of the tax charged on the dividends distributed, the origin of which is the Member State in which the subsidiary is established, and that charged on the dividends distributed by a resident subsidiary. On that basis, that restriction may, in practice, result in a reimbursement of the advance payment which is lower than the tax actually paid by the distributing subsidiary in its Member State of establishment, but that reimbursement does correspond exactly to the amount of the advance payment actually made by the resident company. This ensures that foreign-sourced dividends do not receive more favourable treatment than dividends from the Member State of the parent company.

72.

In essence, according to the applicable provisions of the CGI, parent companies established in France which received dividends distributed by resident companies obtained a tax credit equal to half the sums actually paid. Those parent companies were required to make an advance payment equal to that tax credit.

73.

In accordance with the judgments of the Conseil d’État, ‘where a distributing company has borne, in the Member State, effective tax at a rate higher than the normal rate of the French tax, that is 33.33%, the amount of the tax credit which it may claim must be limited to one third of the dividends which it has received and redistributed’. ( 33 ) That limitation allows for the implementation of the reservation laid down by the Court, namely that, where the profits of a company are subject in the State of the company making the distribution to a higher level of tax than the tax levied by the Member State of the company receiving them, the latter Member State is not obliged to grant a tax credit higher than the amount of the corporation tax for which the company receiving the dividends is liable. ( 34 )

74.

The example presented by the French Republic appears to me, in this regard, to be convincing. Where a subsidiary resident in France makes a profit of 300, the dividend available for the parent company is 200 after payment by the subsidiary of corporation tax at the normal rate of 33.33%. The parent company established in France therefore receives a dividend of 200 exempt from corporation tax and, at that time, a tax credit equivalent to half that amount, that is 100. Since that amount is identical to the advance payment that it is required to pay when it distributes the dividend, the balance available for the shareholder is still 200. However, where a dividend of an equivalent amount has been paid to the parent company by a non-resident subsidiary, the advance payment due corresponds to one third of the income distributable, without the possibility of a tax credit being used by way as an offset. In this situation, the balance available is therefore 133. By limiting the amount to be reimbursed to one third of the dividend received from the non-resident subsidiary — itself equivalent to the tax credit received by the shareholder in respect of that distribution — the distributing company is reimbursed the amount of the advance payment that it had made. Equilibrium is thus re-established since an available balance of 200 is restored. ( 35 ) The French Republic illustrates its presentation using the following diagram:

Situation in which the French parent company redistributes to its shareholders the dividends received from a French subsidiary

Situation in which the French parent company redistributes to its shareholders the dividends received from a subsidiary established in another Member State

Reimbursing to the distributing company the amount of the advance payment which it has paid, that is 67, does indeed allow the discrimination suffered to be removed, since that company thus distributes 133 + 67 = 200

75.

However, if the French Republic had to reimburse an advance payment equivalent to all the tax paid by the distributing subsidiary in its State of residence — that is to say, in the scenario used in the previous point, an amount of 100, that is to say an amount higher than the tax paid by the parent company on account of its receipt of the dividend —, the amount received by the shareholders would be higher than that received by a shareholder in a purely domestic situation. ( 36 )

76.

The cap on the advance payment reimbursed fixed at one third of the amount of the dividends forming the subject of the (pre-tax) re-distribution is not therefore equivalent to the tax actually paid by the subsidiary in its State of residence. However, the amount reimbursed — which is not subject to the advance payment and therefore redistributable in full — does correspond to the advance payment actually made by the distributing parent company and of which it seeks reimbursement; the discrimination complained of is therefore remedied.

77.

In its reply, the Commission concedes that it had not taken into account the fact that the reimbursements made following the judgment of 15 September 2011, Accor (C‑310/09, EU:C:2011:581), did not give rise to taxation or to the grant of a tax credit. Nevertheless, the Commission takes the view that there is still a ‘risk’ that the cap on the reimbursement does not wholly eliminate the discrimination caused by the tax scheme found to be incompatible with EU law. This is even the case where the amount of the tax on company profits ultimately payable is higher than the amount of the advance payment previously levied, or where the tax to which the shareholder is subject is greater than the amount of the advance payment initially levied. The intention of this new approach is therefore that the final shareholders are treated differently. However, that situation is not the situation dealt with in the cases which gave rise to the judgment of 15 September 2011, Accor (C‑310/09, EU:C:2011:581), ( 37 ) nor that at issue before a tax court to which an application for reimbursement of the advance payment is made by a parent company distributing dividends.

78.

In addition, this new approach by the Commission is merely the expression of a theoretical analysis. It is not accompanied by any specific example capable of demonstrating its operation in reality. Moreover, ‘in proceedings under Article 258 TFEU for failure to fulfil obligations, it is incumbent upon the Commission to prove the alleged failure. It must provide the Court with the information necessary for it to determine whether the infringement is made out, and the Commission may not rely on any presumption for that purpose’. ( 38 )

79.

In the light of the foregoing considerations, I take the view that the Commission fails to show that the French Republic continues the discrimination found to exist by the Court in the judgment of 15 September 2011, Accor (C‑310/09, EU:C:2011:581) by limiting to one third of the dividends paid by a non-resident subsidiary the reimbursement of the advance payment made on those dividends.

80.

According to the Commission, the Conseil d’État should have made a reference for a preliminary ruling before establishing the procedures for reimbursement of the advance payment, the collection of which was found to be incompatible with EU law in accordance with the judgment of 15 September 2011, Accor (C‑310/09, EU:C:2011:581). As the court adjudicating at last instance for the purposes of the third paragraph of Article 267 TFEU, the Conseil d’État was required to put questions to the Court in view of the difficulties in drawing conclusions from that judgment.

81.

On the one hand, doubts as to the compatibility with EU law of any restrictions on the right to reimbursement of the advance payment were brought to the fore by the opinion of the rapporteur public and by the parties’ desire that the Conseil d’État make a new request for a preliminary ruling.

82.

On the other hand, the risk of a divergence in case-law within the European Union could not be ruled out in the light of the judgment of 13 November 2012, Test Claimants in the FII Group Litigation (C‑35/11, EU:C:2012:707).

83.

The French Government recalls, first of all, the case-law of the Court according to which national courts are not required to make a request for a preliminary ruling on interpretation simply because a party to the proceedings so wishes.

84.

It goes on to argue that the Commission has still failed to specify the difficulties with which the Conseil d’État was faced in the cases which gave rise to the judgments concerned and which justified a reference for a preliminary ruling under the third paragraph of Article 267. In addition, that court had to face difficulties of a factual nature and not difficulties involving the interpretation of EU law.

85.

In any event, the Conseil d’État was right to take the view that the answers to the questions with which it was faced were sufficiently obvious for there to be no resultant obligation to submit a new question to the Court for a preliminary ruling.

86.

The fourth complaint can be contemplated only in the event that one (or more) of the other complaints is well founded. As the Commission itself makes clear, this last complaint is limited to the fact that the Conseil d’État failed to fulfil its obligation ‘in the circumstances of the present case’, ( 39 ) that is to say the consequences of the judgment of 15 September 2011, Accor (C‑310/09, EU:C:2011:581). It is therefore not concerned with a structural failure to fulfil the obligation to make a reference for a preliminary ruling, which is incumbent on the Conseil d’État under the third paragraph of Article 267 TFEU.

87.

In any event, as I have set out in the introduction to this Opinion, this is the first time that the Court has been called upon to rule on a complaint of this kind in the context of an action for failure to fulfil obligations. However, the theoretical possibility of a State failing to fulfil its obligations on the basis of an infringement of the third paragraph of Article 267 TFEU appears to me to be certain.

88.

First, it is established that ‘the liability of a Member State under Article [258 TFEU] arises whatever the agency of the State whose action or inaction is the cause of the failure to fulfil its obligations, even in the case of a constitutionally independent institution’. ( 40 ) Second, the Court has rejected the argument that it would be difficult to remedy an infringement because that infringement has its origin in a judgment of a supreme court. ( 41 )

89.

The aforementioned possibility is consistent not only with the objective pursued by the obligation to make a reference provided for in the third paragraph of Article 267 TFEU but also with the conditions governing the rules on the liability of Member States where EU law is infringed.

90.

The obligation to make a reference laid down in the third paragraph of Article 267 TFEU is intended in particular to prevent a body of national case-law that is not in accordance with the rules of EU law from being established in a Member State. ( 42 ) As Advocate General Bot has observed, non-compliance on the part of national courts and tribunals against whose decisions there is no judicial remedy under national law with their obligation to make a reference has the effect of depriving the Court of the fundamental task assigned to it by the first subparagraph of Article 19(1) TEU, namely to ensure ‘that in the interpretation and application of the Treaties the law is observed’. ( 43 )

91.

In addition, the Court has consistently held that non-compliance with the obligation to make a reference for a preliminary ruling laid down in the third paragraph of Article 267 TFEU is one of the factors which must be taken into account when examining the liability of a Member State on account of a decision of a national court adjudicating at last instance. ( 44 )

92.

The possibility of finding that a Member State has failed to fulfil its obligations on account of a breach of the obligation to make a reference for a preliminary ruling is particularly justified where that failure to fulfil obligations follows an initial judgment of the Court. According to the Court, the obligation incumbent on a Member State under Article 260(1) TFEU means that ‘all the institutions of the Member States concerned must … ensure within the fields covered by their respective powers that judgments of the Court are complied with. … [It is for this reason that] the courts of the Member State concerned have an obligation to ensure, when performing their duties, that the Court’s judgment is complied with’. ( 45 ) Having been confirmed with regard to compliance with a judgment declaring a failure to fulfil obligations, the same conclusion must be reached vis-à-vis courts which have referred questions to the Court for a preliminary ruling since judgments on interpretation given by the Court have a ‘generalised’ effect within the EU legal system: ( 46 ) once a provision of EU law has been interpreted by the Court of Justice, that interpretation is binding on all courts. ( 47 ) That interpretation clarifies the meaning and scope of the rule of EU law at issue as it must be or ought to have been understood and applied from the time of its entry into force. ( 48 )

93.

Accordingly, if the court which referred the question for a preliminary ruling still has doubts about the meaning of the rule and it is a court of last instance, it is thus obliged to put further questions to the Court. In those circumstances, the Court’s response appears necessary to decide the case such that, in accordance with the judgment of 6 October 1982, Cilfit and Others (283/81, EU:C:1982:335), ( 49 ) the obligation to make a reference is ‘made out’. ( 50 )

94.

With regard to the scope of that obligation, the Court has confirmed that it now followed ‘from settled case-law, beginning with the judgment in Cilfit and Others (283/81, EU:C:1982:335), that a court or tribunal against whose decisions there is no judicial remedy under national law is obliged, where a question of EU law is raised before it, to comply with its obligation to bring the matter before the Court of Justice, unless it has established that the question raised is irrelevant [— that is to say, “if the answer to that question, regardless of what it may be, can in no way affect the outcome of the case” ( 51 ) —] or that the provision of EU law concerned has already been interpreted by the Court or that the correct application of EU law is so obvious as to leave no scope for any reasonable doubt’. ( 52 )

95.

At the end of my analysis of the second and third complaints, I came to the conclusion that the Conseil d’État had not mistaken the meaning or the scope of the judgment of 15 September 2011, Accor (C‑310/09, EU:C:2011:581), as regards the rules of evidence permitted and the assessment of the amount of the advance payment to be reimbursed. It cannot be said to have failed to fulfil its obligation to make a reference for a preliminary ruling in that regard. It may be accepted that the points of law in question had been dealt with, within the meaning of the judgment of 6 October 1982, Cilfit and Others (283/81, EU:C:1982:335, paragraph 14), by the judgment of 15 September 2011, Accor (C‑310/09, EU:C:2011:581).

96.

However, the solution adopted in the judgments of the Conseil d’État with regard to the tax paid by the sub-subsidiaries is more problematic, since it is indisputable that recourse to EU law appeared necessary in order to resolve the disputes brought before it.

97.

It is true that the national court or tribunal alone has sole responsibility for determining whether the correct application of EU law is so obvious as to leave no scope for any reasonable doubt and for deciding, as a result, to refrain from referring to the Court a question concerning the interpretation of EU law which has been raised before it. ( 53 ) In other words, ‘it is for the national courts alone against whose decisions there is no judicial remedy under national law to take upon themselves independently the responsibility for determining whether the case before them involves an “acte clair”’. ( 54 )

98.

However, it has been established since the judgment of 6 October 1982, Cilfit and Others (283/81, EU:C:1982:335) that, in order to find that such a situation exists, ‘the national court ruling at last instance must be convinced that the matter is equally obvious to the courts of the other Member States and to the Court of Justice’ . ( 55 ) As the Court took care to clarify, ‘only if those conditions are satisfied may the national court refrain from submitting that question to the Court of Justice and take upon itself the responsibility for resolving it’. ( 56 )

99.

In the present case, it is not disputed that the question of taking into account the tax paid by the sub-subsidiaries of the parent company had not been addressed by the Court in the judgment of 15 September 2011, Accor (C‑310/09, EU:C:2011:581), whereas it did form the subject matter of the judgment of 13 November 2012, Test Claimants in the FII Group Litigation (C‑35/11, EU:C:2012:707). Accordingly, by choosing to depart from that judgment solely on the ground that the UK scheme was different from the French tax credit and advance payment scheme, the Conseil d’État could not be certain that its reasoning would be equally obvious to the Court. Furthermore, the different solutions proposed by the applicant companies and the rapporteur public demonstrated the lack of certainty about the solution to be adopted.

100.

In any event, by failing to put questions to the Court, the Conseil d’État created a risk of a divergence in case-law within the European Union which is incompatible with the obligation to make a reference for a preliminary ruling, an obligation incumbent on it as a court against whose decisions there is no remedy within the meaning of the third paragraph of Article 267 TFEU.

101.

Nor can I agree with the French Republic’s argument that the need to take account of the sub-subsidiaries did not necessitate any legal interpretation but merely factual assessments. After all, in order to calculate the amount to be reimbursed — which is a factual assessment — the question whether account must be taken of the tax paid by the sub-subsidiaries is a question which necessarily had to be dealt with beforehand and the answer to which is dependent on the applicable legal rule. ( 57 )

102.

In the light of the foregoing considerations, I take the view that the French Republic has failed to fulfil the obligation incumbent on the Conseil d’État under the third paragraph of Article 267 TFEU.

103.

Even though it was clear, in the light of the judgment of 13 November 2012, Test Claimants in the FII Group Litigation (C‑35/11, EU:C:2012:707), that the question of any account taken of the tax paid by non-resident sub-subsidiaries was a question of EU law capable of having an impact on the resolution of the disputes brought before the Conseil d’État, and although the correct application of EU law was not so obvious as to leave no scope for any reasonable doubt, the Conseil d’État chose not to refer this question to the Court for a preliminary ruling.

104.

Under Article 138(1) of the Rules of Procedure of the Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

105.

In the present case, the Commission and the French Republic applied, respectively, for the other party to the proceedings to be ordered to pay the costs.

106.

Article 138(3) of the Rules of Procedure of the Court provides that, if it appears justified in the circumstances of the case, the Court may order that one party, in addition to bearing its own costs, to pay a proportion of the costs of the other party. In this case, since I propose that the Commission’s action be upheld solely as regards the first and fourth complaints, I am of the view that, pursuant to that provision, the French Republic should be ordered, in addition to bearing its own costs, to pay half of the Commission’s costs.

107.

Having regard to the foregoing considerations, I propose that the Court should rule as follows: