Official Journal of the European Union

(Case C-105/07) (<span class="super">1</span>)

(Freedom of establishment - Free movement of capital - Tax legislation - Corporation tax - Interest paid by a subsidiary on funds lent by the parent company established in another Member State - Reclassification of the interest as taxable dividends - No such reclassification where interest payments are made to a resident company)

(2008/C 64/17)

Language of the case: Dutch

Referring court

Parties to the main proceedings

Applicant: NV Lammers & Van Cleeff

Defendant: Belgische Staat

Re:

Reference for a preliminary ruling — Rechtbank van eerste aanleg te Antwerpen — Interpretation of Articles 12 EC, 43 EC, 46 EC, 48 EC, 56 EC and 58 EC — National fiscal legislation reclassifying as taxable dividends interest paid by a subsidiary by way of remuneration in respect of loans provided by the parent company established in another Member State, but not reclassifying such interest as taxable dividends when paid to a company established in Belgium

Operative part of the judgment

Articles 43 EC and 48 EC preclude national legislation, such as that at issue in the main proceedings, under which interest payments made by a company resident in a Member State to a director which is a company established in another Member State are reclassified as dividends and are, on that basis, taxable, where, at the beginning of the taxable period, the total of the interest-bearing loans is higher than the paid-up capital plus taxed reserves, whereas, in the same circumstances, where those interest payments are made to a director which is a company established in the same Member State, those payments are not reclassified as dividends and are, on that basis, not taxable.

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(<span class="super">1</span> OJ C 95, 28.4.2007).