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Case C-303/07: Judgment of the Court (First Chamber) of 18 June 2009 (Reference for a preliminary ruling from the Korkein hallinto-oikeus — Finland) — Aberdeen Property Fininvest Alpha Oy (Freedom of establishment — Directive 90/435/EEC — Corporation tax — Distribution of dividends — Withholding tax charged on dividends paid to non-resident companies other than companies within the meaning of that directive — Exemption for dividends paid to resident companies)
ECLI:EU:UNKNOWN:62007CA0303
62007CA0303
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Official Journal of the European Union
C 180/5
(Case C-303/07)
(Freedom of establishment - Directive 90/435/EEC - Corporation tax - Distribution of dividends - Withholding tax charged on dividends paid to non-resident companies other than companies within the meaning of that directive - Exemption for dividends paid to resident companies)
2009/C 180/07
Language of the case: Finnish
Referring court
Party to the main proceedings
Applicant: Aberdeen Property Fininvest Alpha Oy
Re:
Reference for a preliminary ruling — Korkein hallinto-oikeus — Interpretation of Articles 43 EC, 48 EC, 56 EC and 58 EC and Article 2(a) 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 (OJ 1990 L 225, p. 6) — Retention at source on dividends distributed to a parent company established in another Member State, but exemption for dividends distributed to a parent company established on national territory — Taxable person not mentioned in the directive on parent companies and subsidiaries — Tax convention — Restriction of fundamental freedoms — Comparable situation.
Operative part of the judgment
Articles 43 EC and 48 EC must be interpreted as precluding legislation of a Member State which exempts from withholding tax dividends distributed by a subsidiary resident in that State to a share company resident in that State, but charges withholding tax on similar dividends paid to a parent company in the form of an open-ended investment company (SICAV) resident in another Member State which has a legal form unknown in the law of the former State, does not appear on the list of companies referred to in Article 2(a) 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, and is exempt from income tax under the law of the other Member State.
(<span class="super">1</span>) OJ C 211, 8.9.2007.