14.8.2010

Official Journal of the European Union

C 221/4

(Joined Cases C-338/08 and C-339/08) (<span class="super">1</span>)

(Reference for a preliminary ruling - Directive 90/435/EEC - Concept of withholding tax - Application of a levy of 5 % at the time of distribution of dividends and of the ‘refund of the adjustment surtax’ by an Italian subsidiary to its parent company established in the Netherlands, pursuant to a bilateral convention)

2010/C 221/05

Language of the case: Italian

Referring court

Parties to the main proceedings

Applicants: P. Ferrero e C. SpA (C-338/08), General Beverage Europe BV (C-339/08)

Defendants: Agenzia delle Entrate — Ufficio di Alba (C-338/08), Agenzia delle Entrate — Ufficio di Torino 1 (C-339/08)

Re:

Reference for a preliminary ruling — Commissione Tributaria Regionale di Torino — Interpretation of Articles 5(1) and 7(2) 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) — Concept of withholding tax — Parent company in the Netherlands receiving dividends from its subsidiary in Italy subject to the deduction of a levy of 5 % pursuant to Article 10(2) of the Convention between Italy and the Kingdom of the Netherlands for the avoidance of economic double taxation of dividends — Tax applied to the sums paid by way of ‘maggiorazione di conguaglio’, laid down by Article 10(3) of the Convention.

Operative part of the judgment

1.Subject, inter alia, to determination by the referring court, as specified in paragraph 38 of this judgment, of the nature of the ‘refund’ of the ‘adjustment surtax’ at issue in the cases before it, made by an Italian company to a Netherlands company, pursuant to Article 10(3) of the Convention for the avoidance of double taxation with respect to taxes on income and on capital and for prevention of fiscal evasion (with protocol), signed at The Hague on 8 May 1990, in so far as it applies to that refund, a withholding tax such as that at issue in the cases in the main proceedings is not a withholding tax on distributed profits generally prohibited by 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, in the version thereof in force at the material time. However, if the referring court were to find that the ‘refund’ of the ‘adjustment surtax’ is not fiscal in nature, a withholding tax such as that at issue in the cases before it would be a withholding tax on distributed profits which is, as a rule, prohibited by Article 5(1) of Directive 90/435.

2.If the referring court were to regard the withholding tax at issue in the cases before it as a withholding tax on distributed profits within the meaning of Article 5(1) of Directive 90/435, that withholding tax could be held to come within the scope of Article 7(2) of that directive only if, first, that convention contained provisions intended to eliminate or mitigate the economic double taxation of dividends and, secondly, the charging of that withholding tax did not cancel out the effects thereof, a matter which it would be for the referring court to assess.

(<span class="super">1</span>) OJ C 260, 11.10.2008.