Reference for a preliminary ruling from the Supremo Tribunal Administrativo lodged on 26 April 2010 - Secilpar v Fazenda Pública

(Case C-199/10)

Language of the case: Portuguese

Referring court

Supremo Tribunal Administrativo

Parties to the main proceedings

Applicant: Secilpar

Defendant: Fazenda Pública

Question referred

Having regard to the provisions of the Double Taxation Convention concluded between Portugal and Spain, does the deduction at source of [corporate] income tax for the year 2003, applied to a company not resident within national territory at the rate of 15%, as the result of cash dividends made available to it in its capacity of shareholder of a company resident in a Member State, in accordance with Articles 80(2)(c) and 88(3)(b), (4) and (5) of the Código do IRC, Article 71(a) and (d) of the Código do IRS and Article 59 of the EBF as then worded, breach the principles of non-discrimination, freedom of establishment and free movement of capital embodied in Articles 12, 43, 46, 56 and 58(3) of the EC Treaty and Article 5(1) of Directive 90/435/EEC? ¹

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¹ - Council Directive 90/435/EEC of 23 July 1990 on the common system of taxation applicablein the case of parent companies and subsidiaries of different Member States - OJ 1990 L 225, p. 6.