Official Journal of the European Union

C 436/13

(Case C-416/17) (<span class="super note-tag">1</span>)

((Failure of a Member State to fulfil obligations - Articles 49 and 63 TFEU and the third paragraph of Article 267 TFEU - Series of charges to tax - Difference in treatment according to the Member State of residence of the sub-subsidiary - Reimbursement of the advance payment of tax unduly paid - Requirements relating to the evidence establishing a right to such reimbursement - Capping of the right to reimbursement - Discrimination - National court adjudicating at last instance - Obligation to make a reference for a preliminary ruling))

(2018/C 436/15)

Language of the case: French

Parties

Applicant: European Commission (represented by: J.-F. Brakeland and W. Roels, acting as Agents,)

Defendant: French Republic (represented by: E. de Moustier, A. Alidière and D. Colas, acting as Agents)

Operative part of the judgment

The Court:

1.Declares that, by refusing to take into account, in order to calculate the reimbursement of the advance payment made by a resident company in respect of the distribution of dividends paid by a non-resident company via a non-resident subsidiary, the tax incurred by that second company on the profits underlying those dividends, even though the national mechanism for the avoidance of economic double taxation allows, in the case of a purely domestic chain of interests, the tax levied on the dividends distributed by a company at every level of that chain of interests to be offset, the French Republic has failed to fulfil its obligations under Articles 49 and 63 TFEU;

2.Declares that, since the Conseil d’État (Council of State, France) failed to make a reference to the Court of Justice of the European Union, in accordance with the procedure provided for in the third paragraph of Article 267 TFEU, in order to determine whether it was necessary to refuse to take into account, for the purpose of calculating the reimbursement of the advance payment made by a resident company in respect of the distribution of dividends paid by a non-resident company via a non-resident subsidiary, the tax incurred by that second company on the profits underlying those dividends, even though its interpretation of the provisions of EU law in the judgments of 10 December 2012, Rhodia (FR:CESSR:2012:317074.20121210), and of 10 December 2012, Accor (FR:CESSR:2012:317075.20121210), was not so obvious as to leave no scope for doubt, the French Republic failed to fulfil its obligations under the third paragraph of Article 267 TFEU;

3.Dismisses the action as to the remainder;

4.Orders the European Commission and the French Republic to bear their own costs.

(<span class="note">1</span> OJ C 293, 4.9.2017)