24.1.2009

Official Journal of the European Union

C 19/11

(Case C-436/08)

(2009/C 19/18)

Language of the case: German

Referring court

Parties to the main proceedings

Applicant: Haribo Lakritzen Hans Riegel BetriebsgmbH

Defendant: Finanzamt Linz

Questions referred

1.Does Community law preclude a national authority — in order to avoid discriminating against foreign equity holdings which, unlike domestic (Austrian) equity holdings, are not tax exempt under legislation until the size of the equity holding reaches 25 % (under present legislation 10 %) — from applying the credit method because the Austrian Verwaltungsgerichtshof (Administrative Court) has ruled that this outcome is closest to the (hypothetical) intention of the legislature, whilst tax exemption would be granted if the discriminatory 25 % (10 %) threshold for foreign equity holdings were simply not applied?

2.Does Community law preclude: the general exemption of domestic equity holdings whilst the credit method is applied to foreign equity holdings of less than 25 % (10 %) and shareholders are faced with the impossible or disproportionately costly task of adducing evidence of a previous foreign charge to (corporation) tax; or

—the grant of exemption to domestic equity holdings of less than 25 % (10 %) whilst the credit method is applied to foreign equity holdings of less than 25 % (10 %) and shareholders are charged with the impossible or disproportionately costly task of adducing evidence; or

—the general exemption of domestic equity holdings and of foreign equity holdings of 25 % (10 %) or more whilst the credit method is applied to foreign equity holdings of less than 25 % (10 %) and shareholders are charged with the impossible or disproportionately costly task of adducing evidence?

2.1If the answer to the second question should be in the negative: Does Community law preclude the imposition of an obligation on a taxpayer to adduce evidence of a previous foreign charge to (corporation) tax so as to obtain relief from double economic taxation even though the production of such evidence is an impossible or disproportionately costly task, when it could be produced by the authority applying the Directive on mutual assistance?

3.Does Community law preclude a provision whereby the credit method is to apply to non-member-country equity holdings of less than 25 % (10 %) which fall within the scope of free movement of capital where the production of evidence of payment of a previous foreign charge to (corporation) tax is an impossible or disproportionately costly task because of the small size of the equity holdings, whilst provision is made for the exemption method to apply to domestic equity holdings in general — that is to say, irrespective of the size of the equity holdings — and relief from double economic taxation is therefore obtained in any event?

3.1If the answer to the third question should be in the affirmative: Does Community law preclude the refusal of exemption for income from non-member-country equity holdings where the size of the equity holding is less than 25 % (10 %) even though exemption for income from equity holdings of more than 25 % (10 %) is not linked to satisfaction of particular requirements compliance with which could be examined only by obtaining information from the competent authorities of the country concerned and exemption is granted in such cases without any other conditions being attached?

3.2If the answer to the third question should be in the negative: Does Community law preclude the refusal of a credit for foreign corporation tax for income from non-member-country equity holdings where the size of the equity holding is less than 25 % (10 %) even though tax exemption for income from holdings of more than 25 % (10 %) is not linked to satisfaction of particular requirements compliance with which could be examined only by obtaining information from the competent authorities of the country concerned and exemption is granted in such cases without any other conditions being attached?