11.10.2008

Official Journal of the European Union

C 260/7

(Case C-338/08)

(2008/C 260/11)

Language of the case: Italian

Referring court

Parties to the main proceedings

Applicant: P. FERRERO e C. Spa

Defendant: Agenzia Entrate — Ufficio di Alba

Questions referred

1.Whether the withholding tax applicable to the dividend adjustment constitutes withholding tax on profits prohibited by Article 5(1) of Directive 435/90/EEC (in the case in point the subsidiary opted for the agreement-based regime);

2.As a subordinate point, in the case of an affirmative answer to the first question, whether the protective clause referred to in Article 7(2) of the Directive applies.

(1) OJ L 225, p. 6.