Official Journal of the European Union

C 103/15

(Case C-35/11)

2011/C 103/27

Language of the case: English

Referring court

Parties to the main proceedings

Applicants: Test Claimants in the FII Group Litigation

Defendants: Commissioners of Inland Revenue, Commissioners for Her Majesty's Revenue & Customs

Questions referred

1.Do the references to ‘tax rates’ and ‘different levels of taxation’ at paragraph 56 of the Court's judgment of 12 December 2006 in Case C-446/04 Test Claimants in the FII Group Litigation v Commissioners of Inland Revenue [2006] ECR 1-11753:

(a) refer solely to statutory or nominal rates of tax; or

(b) refer to the effective rates of tax paid as well as the statutory or nominal rates of tax; or

(c) do the phrases referred to have some different meaning and, if so, what?

2.Does it make any difference to the Court's answer to Questions 2 and 4 of the reference in Case C-446/04 if:

(a) foreign corporation tax is not (or not wholly) paid by the non-resident company paying the dividend to the resident company, but that dividend is paid from profits comprising dividends paid by its direct or indirect subsidiary resident in a Member State and which were paid out of profits on which tax has been paid in that State; and/or

(b) advance corporation tax (‘ACT’) is not paid by the resident company which receives the dividend from a non-resident company, but is paid by its direct or indirect resident parent company upon the further distribution of the profits of the recipient company that directly or indirectly comprise the dividend?

3.In the circumstances described in Question 2(b) above does the company paying the ACT have a claim for the repayment of the tax unduly levied (San Giorgio) or only a claim for damages (Brasserie du Pêcheur and Factortame)?

4.Where the national legislation in question does not apply exclusively to situations in which the parent company exercises decisive influence over the dividend paying company, can a resident company rely upon Article 63 TFEU (formerly Article 56 EC) in respect of dividends received from a subsidiary over which it exercises decisive influence and which is resident in a third country?

5.Does the Court's answer to Question 3 of the reference in Case C-446/04 also apply where the non-resident subsidiaries to which no surrender could be made are not subject to tax in the Member State of the parent company?

(1) Case 199/82 Amministrazione delle Finanze della Stata v SpA San Giorgio [1983] ECR 3595.

(2) Joint Cases C-46/93 and C-48/93 Brasserie du Pêcheu: SA v Federal Republic of Germany and The Queen v Secretary of State far Transport, ex parte Factortame Ltd and Others [1996] ECR 1-1029.