Judgment of the Court (Sixth Chamber) of 7 September 2017 (request for a preliminary ruling from the Conseil d'État — France) — Eqiom SAS, formerly Holcim France SAS, Enka SA v Ministre des Finances et des Comptes publics

(Case C-6/16) (1)

((Reference for a preliminary ruling - Direct taxation - Freedom of establishment - Free movement of capital - Withholding tax - Directive 90/435/EEC - Article 1(2) - Article 5(1) - Exemption - Dividends distributed by a resident subsidiary to a non-resident parent company controlled directly or indirectly by one or more residents of third States - Presumption - Fraud, tax evasion and abuse))

(2017/C 374/06)

Language of the case: French

Referring court

Conseil d'État

Parties to the main proceedings

Applicants: Eqiom SAS, formerly Holcim France SAS, Enka SA

Defendant: Ministre des Finances et des Comptes publics

Operative part of the judgment

Article 1(2) 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 2003/123/EC of 22 December 2003, first, and Article 49 TFEU, secondly, must be interpreted as precluding national tax legislation, such as that at issue in the main proceedings, which subjects the grant of the tax advantage provided for by Article 5(1) of that directive — namely, the exemption from withholding tax of profits distributed by a resident subsidiary to a non-resident parent company, where that parent company is directly or indirectly controlled by one or more residents of third States — to the condition that that parent company establish that the principal purpose or one of the principal purposes of the chain of interests is not to take advantage of that exemption.

(1)  OJ C 106, 21.3.2016.