Order of the Court (Fifth Chamber) of 22 November 2010 – Selipar – Sociedade Unipessoal v Fazenda Pública

(Case C‑199/10)

Article 104(3), first subparagraph, of the Rules of Procedure – Articles 56 EC and 58 EC – Taxation of dividends – Deduction at source – National fiscal legislation which provides for an exemption of dividends paid to resident companies

1.                     Community law – Principles – Equal treatment – Discrimination on grounds of nationality – Relation of Article 12 EC to Articles 43 EC and 56 EC (Arts 12 EC, 43 EC and 56 EC) (see paras 23-24)

2.                     Free movement of capital – Restrictions – Fiscal legislation – Corporation tax – Taxation of dividends (Arts 56 EC and 58 EC) (see paras 36-38, 40-41, 43, operative part)

Re:

Reference for a preliminary ruling – Supremo Tribunal Administrativo –Compatibility with Articles 12 EC, 43 EC, 56 EC, 58(3) EC (now Articles 18, 49, 63 and 65(3) TFEU) and with 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 (OJ 1990 L 225, p. 6) of national fiscal legislation on the taxation of dividends distributed by a resident company to a non‑resident company having a holding in the company paying the dividends of less than 25% – Taxation by deduction at source at the rate of 15% provided for by the double taxation agreement concluded between the two Member States at issue ‑ Exemption of dividends paid to resident companies.

Operative part:

Articles 56 EC and 58 EC must be interpreted as precluding a tax scheme under a double-taxation agreement concluded between two Member States, which provides for a withholding tax of 15 % on the dividends distributed by a company established in one Member State to a company established in another Member State, whereas the national legislation of the first Member State exempts from that tax dividends paid to a resident company. It would be otherwise only if the tax withheld at source might be set off against the tax payable in the second Member State in the full amount of the difference in treatment. It is for the court making the reference to determine whether such a neutralisation of the difference in treatment has been effected by the application of all the provisions of the convention for the avoidance of double taxation and prevention of the avoidance or evasion of taxes with respect to taxes on income, concluded on 26 October 1993 between the Portuguese Republic and the Kingdom of Spain.