31.3.2012

Official Journal of the European Union

C 98/15

(Case C-24/12)

2012/C 98/23

Language of the case: Dutch

Referring court

Parties to the main proceedings

Appellant: X BV

Respondent: Staatssecretaris van Financiën

Questions referred

1.For the purposes of Article 56 EC (now Article 63 TFEU), can an own OCT be regarded as a third State, in which case it would be possible to rely on Article 56 EC in respect of the movement of capital between a Member State and the own OCT?

2.If question 1 is answered in the affirmative, is it necessary in order to determine whether, for the purposes of Article 57(1) EC (now Article 64(1) TFEU), there has been an increase, for account to be taken in the present case — in which the withholding tax on participation dividends paid by a subsidiary company established in the Netherlands to its holding company established in the Netherlands Antilles was increased from the 1993 rate of 7,5 or 5 % to 8,3% as from 1 January 2002 — exclusively of the increase in the Netherlands withholding tax, or must account also be taken of the fact that, as from 1 January 2002, the Netherlands Antillean authorities have — in conjunction with the increase in the Netherlands withholding tax — granted an exemption in respect of participation dividends received from a subsidiary company established in the Netherlands, whereas previously those dividends formed part of profits taxed at a rate of 2,4 to 3 % or 5 %?

(b)If account must also be taken of the tax reduction in the Netherlands Antilles effected by the introduction of the participation exemption referred to in question 2(a) above, should Netherlands Antillean implementation arrangements (in the present case: Netherlands Antillean rulings practice), the result of which may have been that prior to 1 January 2002 — including in 1993 — the actual tax liability in respect of dividends received from the/a subsidiary company established in the Netherlands was substantially lower than 8,3%, also be taken into consideration?