Notice for the OJ
Reference for a preliminary ruling by the High Court of Justice (England & Wales) (Chancery Division), by order of that court dated 25 August 2004, in the case of Test Claimants in Class IV of the ACT Group Litigation against Commissioners of Inland Revenue.
(Case C-374/04)
Reference has been made to the Court of Justice of the European Communities by order of the High Court of Justice (England & Wales) (Chancery Division), dated 25 August 2004, which was received at the Court Registry on 30 August 2004 for a preliminary ruling in the case of Test Claimants in Class IV of the ACT Group Litigation and Commissioners of Inland Revenue, on the following questions:
1. Is it contrary to Article 43 EC or 56 EC (having regard to Articles 57 EC and 58 EC) (or their predecessor provisions):
(a) For Member State A (such as the United Kingdom)
(i) to enact and keep in force legislation which confers an entitlement to a full tax credit in respect of dividends paid by companies resident in Member State A ("relevant dividends") to individual shareholders resident in Member State A;
(ii) to give effect to a provision in double taxation conventions concluded with certain other Member States and third countries which confers an entitlement to a full tax credit (less tax as provided for in those conventions) in respect of relevant dividends to individual shareholders resident in those other Member States and third countries;
but not to confer an entitlement to any tax credit (whether full or partial) in respect of relevant dividends when paid by a subsidiary resident in Member State A (such as the United Kingdom) to a parent company resident in Member State B (such as Germany) either under domestic provisions or under the terms of the double taxation convention between those States;
(b) For Member State A (such as the United Kingdom) to give effect to a provision in the applicable double taxation convention conferring an entitlement to a partial tax credit in respect of relevant dividends on a parent company resident in Member State C (such as the Netherlands), but not to confer such an entitlement on a parent company resident in Member State B (such as Germany), where there is no provision for a partial tax credit in the double taxation convention between Member State A and Member State B;
(c) For Member State A (such as the United Kingdom) not to confer an entitlement to a partial tax credit in respect of relevant dividends on a company resident in Member State C (such as the Netherlands) which is controlled by a company resident in Member State B (such as Germany) when Member State A gives effect to provisions in double taxation conventions which confer such an entitlement:
on companies resident in Member State C which are controlled by residents of Member State C;
on companies resident in Member State C which are controlled by residents of Member State D (such as Italy) where there is a provision conferring entitlement to a partial tax credit in respect of relevant dividends in the double taxation convention between Member State A and Member State D;
on companies resident in Member State D irrespective of who controls those companies?
(d) Does it make any difference to the answer to Question l(c) that the company resident in Member State C is controlled not by a company resident in Member State B, but by a company resident in a third country?
2. If the answer to all or any part of Question l (a) to (c) is in the affirmative, what principles does Community law lay down with regard to the Community rights and remedies available in the circumstances set out in those questions? In particular:
(a) Is Member State A obliged to pay:
i. The full tax credit or an amount equivalent thereto; or
ii. The partial tax credit or an amount equivalent thereto; or
iii. The full or partial tax credit, or an amount equivalent thereto:
net of any extra income tax payable or which would have been payable if the dividend paid to the relevant claimant had attracted a tax credit;
net of such tax calculated on some other basis?
(b) To whom should such payment be made:
i. The relevant parent company in Member State B or Member State C;
or
ii. The relevant subsidiary in Member State A?
(c) Is the right to such payment:
i. A right to reimbursement of sums unduly levied such that repayment is a consequence of, and an adjunct to, the right conferred by Articles 43 and/or 56; and/or
ii. A right to compensation or damages such that the conditions for recovery laid down in Joined Cases C-46/93 and C-48/93 Brasserie du Pecheur and Factortame must be satisfied; and/or
iii. A right to recover a benefit unduly denied and, if so:
is such a right a consequence of, and an adjunct to, the right conferred by Articles 43 and/or 56; or
must the conditions for recovery laid down in Joined Cases C- 46/93 and C-48/93 Brasserie du Pecheur and Factortame be satisfied; or
must some other conditions be met?
(d) Does it make any difference for the purposes of Question 2(c) above whether as a matter of the domestic law of State A the claims are brought as restitutionary claims or are brought or have to be brought as claims for damages?
In order to recover, is it necessary for the company making the claim to establish that it, or its parent, would have claimed a tax credit (full or partial as the case may be) if it had known that under Community law it was entitled to do so?
Does it make any difference to the answer to Question 2(a) that in accordance with the ruling of the Court of Justice in Joined Cases C-397/98 and C-410/98 Hoechst and Metallgesellschaft the relevant subsidiary in Member State A may have been reimbursed or may be entitled in principle to reimbursement of, or in respect of, advance corporation tax in relation to the dividend paid to the relevant parent company in Member State B or Member State C?
(g) What guidance, if any, does the Court of Justice think it appropriate to provide in the present cases as to which circumstances the national court ought to take into consideration when it comes to determine whether there is a sufficiently serious breach within the meaning of the judgment in Joined Cases C-46/93 and C-48/93
Brasserie du Pecheur and
Factortame, in particular as to whether, given the state
of the case law on the interpretation of the relevant Community law provisions, the breach was excusable?
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