Keywords
Summary

Keywords

1 Preliminary rulings - Reference to the Court - Court or tribunal of a Member State within the meaning of Article 177 of the EC Treaty (now Article 234 EC) - Meaning - `Regeringsrätten' (Swedish Supreme Administrative Court) - Covered

(EC Treaty, Art. 177 (now Art. 234 EC))

2 Preliminary rulings - Jurisdiction of the Court - Limits - Request for interpretation involving a problem which is not of a hypothetical nature - Court obliged to give a ruling

(EC Treaty, Art. 177 (now Art. 234 EC))

3 Freedom of movement for persons - Freedom of establishment - Tax legislation - Corporation tax - Where a Member State refuses tax relief on intra-group transfers involving subsidiaries whose respective seats are in various other Member States - Not permissible

(EC Treaty, Arts 52, 54, 56 and 57 (now, after amendment, Arts 43 EC, 44 EC, 46 EC and 47 EC), Art. 53 (repealed by the Treaty of Amsterdam) and Arts 55 and 58 (now Arts 45 EC and 48 EC))

Summary

1 A national court may refer a question to the Court only if there is a case pending before it and if it is called upon to give judgment in proceedings intended to lead to a decision of a judicial nature. Accordingly, when seised of an appeal against a ruling of the Skatterättsnämnden (Revenue Law Commission), the Regeringsrätten (Supreme Administrative Court) may seek a preliminary ruling from the Court. In appeals, the purpose of the procedure before the Regeringsrätten is to review the legality of a preliminary decision which, once it becomes definitive, binds the tax authorities and serves as the basis for assessment if and to the extent to which the person who applied for the preliminary decision continues with the action envisaged in his application.

2 By virtue of the cooperation between the Court of Justice and the national courts provided for by Article 177 of the Treaty (now Article 234 EC), it is solely for the national court before which a dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of each case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted by the national court relate to the interpretation of a provision of Community law, the Court is in principle bound to give a ruling.

The position would be different only if the Court were called on to give a ruling on a problem of a hypothetical nature. That is not the position, however, in a case where - although the national court making the reference is called on to give a ruling in proceedings concerning the possibility for a company to carry out in the future an intra-group transfer for the benefit of another company in certain conditions - the Court has sufficient information at its disposal regarding the circumstances with which the main proceedings are concerned to enable it to interpret the rules of Community law and to give a helpful answer to the question submitted to it.

3 Where a Member State grants certain tax relief in respect of intra-group transfers made between two public limited companies established in that Member State and the second of those companies is wholly owned by the first, either directly or together with

- one or more subsidiaries which are themselves established in that Member State and which it owns entirely, or

- one or more subsidiaries which it owns entirely and which have their seats in another Member State with which the first Member State has concluded an agreement for the prevention of double taxation which contains a non-discrimination clause,

Article 52 of the Treaty (now, after amendment, Article 43 EC), Article 53 of the Treaty (repealed by the Treaty of Amsterdam), Article 54 of the Treaty (now, after amendment, Article 44 EC), Article 55 of the Treaty (now Article 45 EC), Articles 56 and 57 of the Treaty (now, after amendment, Articles 46 EC and 47 EC) and Article 58 of the Treaty (now Article 48 EC) preclude that tax relief from being refused in respect of transfers made between two public limited companies established in that Member State, where the second of those companies is wholly owned by the first together with several subsidiaries which it owns entirely and which have their seat in various other Member States with which the first Member State has concluded agreements for the prevention of double taxation which contain a non-discrimination clause.

Such legislation entails a difference of treatment between various types of intra-group transfers on the basis of the criterion of the subsidiaries' seat.