9.11.2015

Official Journal of the European Union

C 371/6

(Joined Cases C-10/14, C-14/14 and C-17/14) (<span class="super">1</span>)

((Reference for a preliminary ruling - Direct taxation - Articles 63 TFEU and 65 TFEU - Free movement of capital - Taxation of dividends from portfolios of shares - Withholding tax - Restriction - Final tax burden - Factors for comparing the tax burdens of resident and non-resident taxpayers - Comparability - Taking into account income tax or corporation tax - Conventions for the avoidance of double taxation - Neutralisation of the restriction by means of a convention))

(2015/C 371/08)

Language of the case: Dutch

Referring court

Parties to the main proceedings

Applicants: J.B.G.T. Miljoen (C-10/14), X (C-14/14), Société Générale SA (C-17/14)

Defendant: Staatssecretaris van Financiën

Operative part of the judgment

Articles 63 TFEU and 65 TFEU must be interpreted as precluding legislation of a Member State which imposes a withholding tax on dividends distributed by a resident company both to resident taxpayers and non-resident taxpayers and provides a mechanism for deducting or reimbursing the tax withheld only for resident taxpayers, while for non-resident taxpayers, both natural persons and companies, the tax withheld is a final tax, in so far as the final tax burden relating to those dividends, borne in that Member State by non-resident taxpayers, is greater than that borne by resident taxpayers, which it is for the referring court to determine in the main proceedings. For the purposes of determining those tax burdens, the referring court must take account, in Cases C-10/14 and C-14/14, of the taxation of residents in relation to all shares held in Netherlands companies in the calendar year, of capital which is exempt from tax under national legislation, and in Case C-17/14, of expenses which are directly linked to the actual payment of the dividends.

If the existence of a restriction on the movement of capital is established, it may be justified by the effects of a bilateral convention for the avoidance of double taxation concluded by the Member State of residence and the Member State in which the dividends are paid, provided that the difference in treatment, relating to the taxation of dividends, between taxpayers residing in the latter Member State and those residing in other Member States ceases to exist. In circumstances such as those at issue in Cases C-14/14 and C-17/14, and without prejudice to the determinations to be made by the referring court, the restriction on the free movement of capital, if established, cannot be regarded as justified.

(<span class="super">1</span>) OJ C 129, 28.4.2014.