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Case C-138/07: Judgment of the Court (First Chamber) of 12 February 2009 (reference for a preliminary ruling from the Hof van beroep te Antwerpen — Belgium) — Belgische Staat v N.V. Cobelfret (Directive 90/435/EEC — Article 4(1) — Direct effect — National legislation designed to prevent double taxation of distributed profits — Deduction of the amount of dividends received from a parent company's basis of assessment only in so far as it has made taxable profits)
ECLI:EU:UNKNOWN:62007CA0138
62007CA0138
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Official Journal of the European Union
C 82/3
(Case C-138/07) (<span class="super">1</span>)
(Directive 90/435/EEC - Article 4(1) - Direct effect - National legislation designed to prevent double taxation of distributed profits - Deduction of the amount of dividends received from a parent company's basis of assessment only in so far as it has made taxable profits)
(2009/C 82/05)
Language of the case: Dutch
Referring court
Parties to the main proceedings
Applicant: Belgische Staat
Respondent: N.V. Cobelfret
Re:
Reference for a preliminary ruling — Hof van beroep te Antwerpen — Interpretation of Article 4 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) — National provisions designed to prevent double taxation of distributed dividends — Conditions
Operative part of the judgment
The first indent of Article 4(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 must be interpreted as precluding legislation of a Member State, such as that at issue in the main proceedings, which provides that dividends received by a parent company are to be included in its basis of assessment in order subsequently to be deducted from that basis in the amount of 95 %, in so far as, for the tax period in question, the parent company has a positive profit balance after deduction of other exempted profits.
The first indent of Article 4(1) of Directive 90/435 is unconditional and sufficiently precise to be capable of being relied on before national courts.
(<span class="super">1</span>) OJ C 117, 26.5.2007.