24.11.2012

Official Journal of the European Union

C 366/19

(Case C-384/11) (<span class="super">1</span>)

(The first subparagraph of Article 104(3) of the Rules of Procedure - Article 63 TFEU - Tax legislation - Payment of dividends - Withholding tax - Prevention or mitigation of a series of charges to tax - Different treatment of resident recipient companies and non-resident recipient companies)

2012/C 366/32

Language of the case: Dutch

Referring court

Parties to the main proceedings

Applicant: Tate & Lyle Investments Ltd

Defendant: Belgische Staat

Intervener: Syral Belgium NV

Re:

Reference for a preliminary ruling — Rechtbank van eerste aanleg te Brussel — Interpretation of Article 63 TFEU — Restrictions on the free movement of capital — Tax legislation — Corporation tax — Tax on dividends — National rules providing for a 10 % withholding tax on dividends distributed by resident companies and on assimilated income — Imputation to corporation tax of the amount withheld possible only for resident companies

Operative part of the order

Article 63 TFEU must be interpreted as precluding the legislation of a Member State, such as that at issue in the main proceedings, which applies withholding tax to dividends distributed by a resident company to resident and non-resident recipient companies which have a holding of less than 10 % in the capital of the distributing company but with a purchase value of at least EUR 1.2 million, while at the same time providing a mechanism for the mitigation of a series of charges to tax only for resident recipient companies. Where a Member State relies on a convention for the avoidance of double taxation concluded with another Member State, it is for the national court to establish whether account should be taken, in the main proceedings, of that convention, and, if so, to determine whether it enables the effects of the restriction on the free movement of capital to be neutralised.

* * *

(<span class="super">1</span>) OJ C 282, 24.9.2011.