11.3.2019

EN

Official Journal of the European Union

C 93/27

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(Case C-749/18)

(2019/C 93/37)

Language of the case: French

Referring court

Parties to the main proceedings

Appellants: B, C, D

Respondent: Administration des contributions directes

Questions referred

1.Must Articles 49 and 54 TFEU be interpreted as precluding the legislation of a Member State relating to a tax integration scheme which, on the one hand, permits consolidation of the results of companies forming part of the same group and allowing vertical tax integration only between a resident parent company or a permanent native establishment of a non-resident parent company and its resident subsidiaries and, on the other hand, similarly precludes the purely horizontal tax integration of the subsidiaries alone of both a non-resident parent company with no permanent native establishment and a resident or non-resident parent company which has a permanent local establishment?

2.If the answer to the first question is in the affirmative, must Articles 49 and 54 TFEU be interpreted as precluding the same legislation of a Member State relating to a tax integration scheme, in particular to strict separation between vertical integration schemes (between a group parent company and its direct or indirect subsidiaries) and horizontal integration schemes (between two or more resident subsidiaries of a group parent company which remains outside the tax integration perimeter) stemming from that legislation, and the resulting obligation to end a pre-existing vertical tax integration arrangement before being able to form a horizontal tax integration group, where:

— a vertical tax integration arrangement with an integrating group parent company at national level which is resident in the Member State concerned (which, at the same time, represents the intermediate subsidiary in relation to the ultimate parent company, resident in another Member State) and the resident subsidiaries of the group parent company, had previously been established, on account of the fact that the legislation of the Member State concerned allows only vertical tax integration for the purposes of admission to the scheme, notwithstanding the fact that the ultimate parent company is resident in another Member State;

— sister companies of the integrating group parent company of the Member State concerned (therefore also subsidiaries of the ultimate parent company resident of another Member State) are denied access to the existing tax integration arrangements on the ground that the two integration schemes, vertical and horizontal, are incompatible; and

— the inclusion of the results of those sister companies in the consolidated results of the companies within the group would entail the undoing of the pre-existing vertical tax integration arrangement — with the ensuing negative tax consequences on account of non-compliance with the minimum duration of the integration arrangement required by national law — and the setting up of a new horizontal tax integration arrangement, even though the resident integrating company (at the level at which the results of the fiscally integrated companies are consolidated) remains the same?

3.If the answer to the second question is also in the affirmative, must Articles 49 and 54 TFEU, together with the principle of effectiveness of EU law, be interpreted as precluding that same legislation of a Member State relating to a tax integration scheme, in particular the imposition of a time limit under which any request seeking admission to the tax integration scheme must necessarily be submitted to the competent authority before the end of the first tax year for which application of that scheme is sought, where:

— if the first two questions are answered in the affirmative, that legislation precluded, in a manner incompatible with freedom of establishment, horizontal tax integration between the subsidiaries alone of the same parent company and the modification of an existing vertically fiscally integrated group by the addition of sister companies of the integrating company;

— before the publication of the judgment of the [Court of Justice of the European Union] of 12 June 2014 (Joined Cases C-39/13, C-40/13 and C-41/13), the national administrative and judicial practice of the Member State concerned was to accept that that legislation was valid;

— a number of companies submitted, following the publication of the judgment of 12 June 2014 and again before the end of 2014, a request to join an existing fiscally integrated group by being allowed to join a horizontal tax integration arrangement with the integrating company of the existing group, in reliance on the judgment of 12 June 2014; and

— that request relates not only to the 2014 tax year still ongoing at the time that the request was submitted, but also to the previous tax year, 2013, as from which the companies concerned satisfied all the substantive conditions compatible with EU law for admission to the tax integration scheme?

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