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COUNCIL DIRECTIVE 2011/96/EU

of 30 November 2011

on the common system of taxation applicable in the case of parent companies and subsidiaries of different Member States

(recast)

Article 1

Each Member State shall apply this Directive:

(a)

to distributions of profits received by companies of that Member State which come from their subsidiaries of other Member States;

(b)

to distributions of profits by companies of that Member State to companies of other Member States of which they are subsidiaries;

(c)

to distributions of profits received by permanent establishments situated in that Member State of companies of other Member States which come from their subsidiaries of a Member State other than that where the permanent establishment is situated;

(d)

to distributions of profits by companies of that Member State to permanent establishments situated in another Member State of companies of the same Member State of which they are subsidiaries.

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Member States shall not grant the benefits of this Directive to an arrangement or a series of arrangements which, having been put into place for the main purpose or one of the main purposes of obtaining a tax advantage that defeats the object or purpose of this Directive, are not genuine having regard to all relevant facts and circumstances.

An arrangement may comprise more than one step or part.

For the purposes of paragraph 2, an arrangement or a series of arrangements shall be regarded as not genuine to the extent that they are not put into place for valid commercial reasons which reflect economic reality.

This Directive shall not preclude the application of domestic or agreement-based provisions required for the prevention of tax evasion, tax fraud or abuse.

▼B

Article 2

For the purposes of this Directive the following definitions shall apply:

(a)

‘company of a Member State’ means any company which:

(i)

takes one of the forms listed in Annex I, Part A;

(ii)

according to the tax laws of a Member State is considered to be resident in that Member State for tax purposes and, under the terms of a double taxation agreement concluded with a third State, is not considered to be resident for tax purposes outside the Union;

(iii)

moreover, is subject to one of the taxes listed in Annex I, Part B, without the possibility of an option or of being exempt, or to any other tax which may be substituted for any of those taxes;

(b)

‘permanent establishment’ means a fixed place of business situated in a Member State through which the business of a company of another Member State is wholly or partly carried on in so far as the profits of that place of business are subject to tax in the Member State in which it is situated by virtue of the relevant bilateral tax treaty or, in the absence of such a treaty, by virtue of national law.

Article 3

For the purposes of applying this Directive:

(a)

the status of parent company shall be attributed:

(i)

at least to a company of a Member State which fulfils the conditions set out in Article 2 and has a minimum holding of 10 % in the capital of a company of another Member State fulfilling the same conditions;

(ii)

under the same conditions, to a company of a Member State which has a minimum holding of 10 % in the capital of a company of the same Member State, held in whole or in part by a permanent establishment of the former company situated in another Member State;

(b)

‘subsidiary’ means that company the capital of which includes the holding referred to in point (a).

By way of derogation from paragraph 1, Member States shall have the option of:

(a)

replacing, by means of bilateral agreement, the criterion of a holding in the capital by that of a holding of voting rights;

(b)

not applying this Directive to companies of that Member State, which do not maintain for an uninterrupted period of at least 2 years holdings qualifying them as parent companies, or to those of their companies in which a company of another Member State does not maintain such a holding for an uninterrupted period of at least 2 years.

Article 4

Where a parent company or its permanent establishment, by virtue of the association of the parent company with its subsidiary, receives distributed profits, the Member State of the parent company and the Member State of its permanent establishment shall, except when the subsidiary is liquidated, either:

▼M2

(a)

refrain from taxing such profits to the extent that such profits are not deductible by the subsidiary, and tax such profits to the extent that such profits are deductible by the subsidiary; or

▼B

(b)

tax such profits while authorising the parent company and the permanent establishment to deduct from the amount of tax due that fraction of the corporation tax related to those profits and paid by the subsidiary and any lower-tier subsidiary, subject to the condition that at each tier a company and its lower-tier subsidiary fall within the definitions laid down in Article 2 and meet the requirements provided for in Article 3, up to the limit of the amount of the corresponding tax due.

Nothing in this Directive shall prevent the Member State of the parent company from considering a subsidiary to be fiscally transparent on the basis of that Member State’s assessment of the legal characteristics of that subsidiary arising from the law under which it is constituted and therefore from taxing the parent company on its share of the profits of its subsidiary as and when those profits arise. In this case the Member State of the parent company shall refrain from taxing the distributed profits of the subsidiary.

When assessing the parent company’s share of the profits of its subsidiary as they arise the Member State of the parent company shall either exempt those profits or authorise the parent company to deduct from the amount of tax due that fraction of the corporation tax related to the parent company’s share of profits and paid by its subsidiary and any lower-tier subsidiary, subject to the condition that at each tier a company and its lower-tier subsidiary fall within the definitions laid down in Article 2 and meet the requirements provided for in Article 3, up to the limit of the amount of the corresponding tax due.

Each Member State shall retain the option of providing that any charges relating to the holding and any losses resulting from the distribution of the profits of the subsidiary may not be deducted from the taxable profits of the parent company.

Where the management costs relating to the holding in such a case are fixed as a flat rate, the fixed amount may not exceed 5 % of the profits distributed by the subsidiary.

Paragraphs 1 and 2 shall apply until the date of effective entry into force of a common system of company taxation.

The Council, acting unanimously in accordance with a special legislative procedure and after consulting the European Parliament and the Economic and Social Committee, shall, at the appropriate time, adopt the rules to apply as from the date of effective entry into force of a common system of company taxation.

Article 5

Profits which a subsidiary distributes to its parent company shall be exempt from withholding tax.

Article 6

The Member State of a parent company may not charge withholding tax on the profits which such a company receives from a subsidiary.

Article 7

The term ‘withholding tax’ as used in this Directive shall not cover an advance payment or prepayment (précompte) of corporation tax to the Member State of the subsidiary which is made in connection with a distribution of profits to its parent company.

This Directive shall not affect the application of domestic or agreement-based provisions designed to eliminate or lessen economic double taxation of dividends, in particular provisions relating to the payment of tax credits to the recipients of dividends.

Article 8

Member States shall bring into force the laws, regulations, and administrative provisions necessary to comply with this Directive as from 18 January 2012. They shall forthwith inform the Commission thereof.

When Member States adopt these measures, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods of making such reference shall be laid down by Member States.

Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive together with a correlation table between them and this Directive.

Article 9

Directive 90/435/EEC, as amended by the acts listed in Annex II, Part A, is repealed, without prejudice to the obligations of the Member States relating to the time limits for transposition into national law of the Directives set out in Annex II, Part B.

References to the repealed Directive shall be construed as references to this Directive and shall be read in accordance with the correlation table in Annex III.

Article 10

This Directive shall enter into force on the 20th day following its publication in the Official Journal of the European Union.

Article 11

This Directive is addressed to the Member States.

ANNEX I

PART A

List of companies referred to in Article 2(a)(i)

(a)

companies incorporated under Council Regulation (EC) No 2157/2001 of 8 October 2001 on the Statute for a European company (SE) ( 6 ) and Council Directive 2001/86/EC of 8 October 2001 supplementing the Statute for a European company with regard to the involvement of employees ( 7 ) and cooperative societies incorporated under Council Regulation (EC) No 1435/2003 of 22 July 2003 on the Statute for a European Cooperative Society (SCE) ( 8 ) and Council Directive 2003/72/EC of 22 July 2003 supplementing the Statute for a European Cooperative Society with regard to the involvement of employees ( 9 );

(b)

companies under Belgian law known as ‘société anonyme’/‘naamloze vennootschap’, ‘société en commandite par actions’/‘commanditaire vennootschap op aandelen’, ‘société privée à responsabilité limitée’/‘besloten vennootschap met beperkte aansprakelijkheid’, ‘société coopérative à responsabilité limitée’/‘coöperatieve vennootschap met beperkte aansprakelijkheid’, ‘société coopérative à responsabilité illimitée’/‘coöperatieve vennootschap met onbeperkte aansprakelijkheid’, ‘société en nom collectif’/‘vennootschap onder firma’, ‘société en commandite simple’/‘gewone commanditaire vennootschap’, public undertakings which have adopted one of the abovementioned legal forms, and other companies constituted under Belgian law subject to Belgian corporate tax;

(c)

companies under Bulgarian law known as: ‘събирателно дружество’, ‘командитно дружество’, ‘дружество с ограничена отговорност’, ‘акционерно дружество’, ‘командитно дружество с акции’, ‘неперсонифицирано дружество’, ‘кооперации’, ‘кооперативни съюзи’, ‘държавни предприятия’ constituted under Bulgarian law and carrying on commercial activities;

(d)

companies under Czech law known as: ‘akciová společnost’, ‘společnost s ručením omezeným’;

(e)

companies under Danish law known as ‘aktieselskab’ and ‘anpartsselskab’. Other companies subject to tax under the Corporation Tax Act, in so far as their taxable income is calculated and taxed in accordance with the general tax legislation rules applicable to ‘aktieselskaber’;

(f)

companies under German law known as ‘Aktiengesellschaft’, ‘Kommanditgesellschaft auf Aktien’, ‘Gesellschaft mit beschränkter Haftung’, ‘Versicherungsverein auf Gegenseitigkeit’, ‘Erwerbs- und Wirtschaftsgenossenschaft’, ‘Betriebe gewerblicher Art von juristischen Personen des öffentlichen Rechts’, and other companies constituted under German law subject to German corporate tax;

(g)

companies under Estonian law known as: ‘täisühing’, ‘usaldusühing’, ‘osaühing’, ‘aktsiaselts’, ‘tulundusühistu’;

(h)

companies incorporated or existing under Irish law, bodies registered under the Industrial and Provident Societies Act, building societies incorporated under the Building Societies Acts and trustee savings banks within the meaning of the Trustee Savings Banks Act, 1989;

(i)

companies under Greek law known as ‘ανώνυμη εταιρεία’,·‘εταιρεία περιορισμένης ευθύνης (Ε.Π.Ε.)’·and other companies constituted under Greek law subject to Greek corporate tax;

(j)

companies under Spanish law known as: ‘sociedad anónima’, ‘sociedad comanditaria por acciones’, ‘sociedad de responsabilidad limitada’, public law bodies which operate under private law. Other entities constituted under Spanish law subject to Spanish corporate tax (‘Impuesto sobre Sociedades’);

(k)

companies under French law known as ‘société anonyme’, ‘société en commandite par actions’, ‘société à responsabilité limitée’, ‘sociétés par actions simplifiées’, ‘sociétés d’assurances mutuelles’, ‘caisses d’épargne et de prévoyance’, ‘sociétés civiles’ which are automatically subject to corporation tax, ‘coopératives’, ‘unions de coopératives’, industrial and commercial public establishments and undertakings, and other companies constituted under French law subject to French corporate tax;

(l)

companies under Italian law known as ‘società per azioni’, ‘società in accomandita per azioni’, ‘società a responsabilità limitata’, ‘società cooperative’, ‘società di mutua assicurazione’, and private and public entities whose activity is wholly or principally commercial;

(m)

under Cypriot law: ‘εταιρείες’ as defined in the Income Tax laws;

(n)

companies under Latvian law known as: ‘akciju sabiedrība’, ‘sabiedrība ar ierobežotu atbildību’;

(o)

companies incorporated under the law of Lithuania;

(p)

companies under Luxembourgish law known as ‘société anonyme’, ‘société en commandite par actions’, ‘société à responsabilité limitée’, ‘société coopérative’, ‘société coopérative organisée comme une société anonyme’, ‘association d’assurances mutuelles’, ‘association d’épargne-pension’, ‘entreprise de nature commerciale, industrielle ou minière de l’Etat, des communes, des syndicats de communes, des établissements publics et des autres personnes morales de droit public’, and other companies constituted under Luxembourg law subject to Luxembourg corporate tax;

(q)

companies under Hungarian law known as: ‘közkereseti társaság’, ‘betéti társaság’, ‘közös vállalat’, ‘korlátolt felelősségű társaság’, ‘részvénytársaság’, ‘egyesülés’, ‘szövetkezet’;

(r)

companies under Maltese law known as: ‘Kumpaniji ta’ Responsabilita’ Limitata’, ‘Soċjetajiet en commandite li l-kapital tagħhom maqsum f’azzjonijiet’;

(s)

companies under Dutch law known as ‘naamloze vennootschap’, ‘besloten vennootschap met beperkte aansprakelijkheid’, ‘open commanditaire vennootschap’, ‘coöperatie’, ‘onderlinge waarborgmaatschappij’, ‘fonds voor gemene rekening’, ‘vereniging op coöperatieve grondslag’, ‘vereniging welke op onderlinge grondslag als verzekeraar of kredietinstelling optreedt’, and other companies constituted under Dutch law subject to Dutch corporate tax;

(t)

companies under Austrian law known as ‘Aktiengesellschaft’, ‘Gesellschaft mit beschränkter Haftung’, ‘Versicherungsvereine auf Gegenseitigkeit’, ‘Erwerbs- und Wirtschaftsgenossenschaften’, ‘Betriebe gewerblicher Art von Körperschaften des öffentlichen Rechts’, ‘Sparkassen’, and other companies constituted under Austrian law subject to Austrian corporate tax;

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(u)

companies under Polish law known as: ‘spółka akcyjna’, ‘spółka z ograniczoną odpowiedzialnością’, spółka komandytowo-akcyjna;

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(v)

commercial companies or civil law companies having a commercial form and cooperatives and public undertakings incorporated in accordance with Portuguese law;

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(w)

companies under Romanian law known as: ‘societăți pe acțiuni’, ‘societăți în comandită pe acțiuni’, ‘societăți cu răspundere limitată’, ‘societăți în nume colectiv’, ‘societăți în comandită simplă’;

▼B

(x)

companies under Slovenian law known as: ‘delniška družba’, ‘komanditna družba’, ‘družba z omejeno odgovornostjo’;

(y)

companies under Slovak law known as: ‘akciová spoločnosť’, ‘spoločnosť s ručením obmedzeným’, ‘komanditná spoločnosť’;

(z)

companies under Finnish law known as ‘osakeyhtiö’/‘aktiebolag’, ‘osuuskunta’/‘andelslag’, ‘säästöpankki’/‘sparbank’ and ‘vakuutusyhtiö’/‘försäkringsbolag’;

(aa)

companies under Swedish law known as ‘aktiebolag’, ‘försäkringsaktiebolag’, ‘ekonomiska föreningar’, ‘sparbanker’, ‘ömsesidiga försäkringsbolag’, ‘försäkringsföreningar’;

(ab)

companies incorporated under the law of the United Kingdom;

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(ka)

companies under Croatian law known as: ‘dioničko društvo’, ‘društvo s ograničenom odgovornošću’, and other companies constituted under Croatian law subject to Croatian profit tax.

▼B

PART B

List of taxes referred to in Article 2(a)(iii)

—

impôt des sociétés/vennootschapsbelasting in Belgium,

—

корпоративен данък in Bulgaria,

—

daň z příjmů právnických osob in the Czech Republic,

—

selskabsskat in Denmark,

—

Körperschaftssteuer in Germany,

—

tulumaks in Estonia,

—

corporation tax in Ireland,

—

φόρος εισοδήματος νομικών προσώπων κερδοσκοπικού χαρακτήρα in Greece,

—

impuesto sobre sociedades in Spain,

—

impôt sur les sociétés in France,

▼M1

—

porez na dobit in Croatia,

▼B

—

imposta sul reddito delle società in Italy,

—

φόρος εισοδήματος in Cyprus,

—

uzņēmumu ienākuma nodoklis in Latvia,

—

pelno mokestis in Lithuania,

—

impôt sur le revenu des collectivités in Luxembourg,

—

társasági adó, osztalékadó in Hungary,

—

taxxa fuq l-income in Malta,

—

vennootschapsbelasting in the Netherlands,

—

Körperschaftssteuer in Austria,

—

podatek dochodowy od osób prawnych in Poland,

—

imposto sobre o rendimento das pessoas colectivas in Portugal,

—

impozit pe profit in Romania,

—

davek od dobička pravnih oseb in Slovenia,

—

daň z príjmov právnických osôb in Slovakia,

—

yhteisöjen tulovero/inkomstskatten för samfund in Finland,

—

statlig inkomstskatt in Sweden,

—

corporation tax in the United Kingdom.

ANNEX II

PART A

Repealed Directive with list of its successive amendments

(referred to in Article 9)

Council Directive 90/435/EEC (OJ L 225, 20.8.1990, p. 6).
Point XI.B.I.3 of Annex I to the 1994 Act of Accession (OJ C 241, 29.8.1994, p. 196).
Council Directive 2003/123/EC (OJ L 7, 13.1.2004, p. 41).
Point 9.8 of Annex II to the 2003 Act of Accession (OJ L 236, 23.9.2003, p. 555).
Council Directive 2006/98/EC (OJ L 363, 20.12.2006, p. 129).	Annex, point 7 only

PART B

List of time limits for transposition into national law

(referred to in Article 9)

Directive	Time limit for transposition
90/435/EEC	31 December 1991
2003/123/EC	1 January 2005
2006/98/EC	1 January 2007

ANNEX III

Correlation Table

Directive 90/435/EEC	This Directive
Article 1(1) first to fourth indents	Article 1(1)(a) to (d)
Article 1(2)	Article 1(2)
Article 2(1) first part of the introductory phrase	Article 2 introductory phrase
Article 2(1) second part of the introductory phrase	Article 2(a), introductory phrase
Article 2(1)(a)	Article 2(a)(i)
Article 2(1)(b)	Article 2(a)(ii)
Article 2(1)(c) introductory phrase of the first subparagraph and second subparagraph	Article 2(a)(iii)
Article 2(1)(c), first subparagraph, first to twenty-seventh indents	Annex I, Part B, first to twenty-seventh indents
Article 2(2)	Article 2(b)
Article 3(1) introductory phrase	Article 3(1), introductory phrase
Article 3(1)(a) first subparagraph, initial words	Article 3(1)(a), introductory phrase
Article 3(1)(a) first subparagraph, final words	Article 3(1)(a)(i)
Article 3(1)(a) second subparagraph	Article 3(1)(a)(ii)
Article 3(1)(a) third subparagraph	—
Article 3(1)(a) fourth subparagraph	—
Article 3(1)(b)	Article 3(1)(b)
Article 3(2) first and second indents	Article 3(2)(a) and (b)
Article 4(1) first and second indents	Article 4(1)(a) and (b)
Article 4(1a)	Article 4(2)
Article 4(2) first sentence	Article 4(3) first subparagraph
Article 4(2) second sentence	Article 4(3) second subparagraph
Article 4(3) first subparagraph	Article 4(4)
Article 4(3) second subparagraph	Article 4(5)
Articles 5, 6 and 7	Articles 5, 6 and 7
Article 8(1)	—
Article 8(2)	Article 8
—	Article 9
—	Article 10
Article 9	Article 11
Annex	Annex I, Part A
—	Annex II
—	Annex III

( 1 ) Opinion delivered on 4 May 2011 (not yet published in the Official Journal).

		Official Journal
		No	page	date
►M1	COUNCIL DIRECTIVE 2013/13/EU of 13 May 2013	L 141	30	28.5.2013
►M2	COUNCIL DIRECTIVE 2014/86/EU of 8 July 2014	L 219	40	25.7.2014
►M3	COUNCIL DIRECTIVE (EU) 2015/121 of 27 January 2015	L 21	1	28.1.2015