26.2.2011

Official Journal of the European Union

C 63/16

(Case C-199/10) (<span class="super">1</span>)

(Article 104(3), first paragraph, of the Rules of Procedure - Articles 56 EC and 58 EC - Taxation of dividends - Deduction at source - National fiscal legislation which provides for an exemption of dividends paid to resident companies)

2011/C 63/30

Language of the case: Portuguese

Referring court

Parties to the main proceedings

Applicant: Secilpar — Sociedade Unipessoal SL

Defendant: Fazenda Pública

Re:

Reference for a preliminary ruling — Supremo Tribunal Administrativo — Compatibility with Articles 12 EC, 43 EC, 56 EC, 58(3) EC (now Articles 18, 49, 63 and 65(3) TFEU) and with Article 5(1) 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) of national fiscal legislation on the taxation of dividends distributed by a resident company to a non-resident company which has a holding in the company paying the dividends of less than 25 % — Taxation by deduction at source at the rate of 15 % provided for by the double taxation agreement concluded between the two Member States at issue — Exemption of dividends paid to resident companies

Operative part of the order

Articles 56 EC and 58 EC must be interpreted as precluding a tax scheme under a double-taxation agreement concluded between two Member States, which provides for withholding tax of 15 % on the dividends distributed by a company established in one Member States to a company established in another Member State, where the national legislation of the first Member States exempts from that tax dividends paid to a resident company. It would be otherwise only if the tax withheld at source could be set off against the tax payable in the second Member State in the full amount of the difference in treatment. It is for the national court to determine whether such a neutralisation of the difference in treatment has been effected by the application of all the provisions of the convention for the avoidance of double taxation and prevention of the avoidance or evasion of taxes with respect to taxes on income, concluded on 26 October 1993 between the Portuguese republic and the Kingdom of Spain.

(<span class="note">1</span>) OJ C 195, 17.7.2010.