Language of document : ECLI:EU:C:2018:437





Order of the Court (Sixth Chamber) of 14 June 2018 — GS

(Case C440/17) (1)

(Reference for a preliminary ruling — Article 99 of the Rules of Procedure of the Court — Direct taxation — Freedom of establishment — Directive 2011/96/EU — Article 1(2) — Parent company — Holding company — Withholding tax on profits distributed to a non-resident parent holding company — Exemption — Tax evasion, avoidance or abuse — Presumption)

1.      Approximation of laws — Common system of taxation applicable in the case of parent companies and subsidiaries of different Member States — Directive 2011/96 — Exhaustive harmonisation — No such harmonisation — Possibility of assessing the compatibility of national legislation in the same field on the basis of primary law

(Council Directive 2011/96, as amended by Directive 2013/13, Art. 1(2))

(see para. 31)

2.      Approximation of laws — Common system of taxation applicable in the case of parent companies and subsidiaries of different Member States — Directive 2011/96 — Exemption, in the Member State of the subsidiary, from withholding tax on profits distributed to the parent company — Dividends distributed by a resident subsidiary to a non-resident parent company — Exemption from withholding tax being the general rule — Derogation from that rule in the case of abuse or fraud — Shares in the parent company held by persons who are not entitled to such an exemption — National legislation which, as a general rule, prevents those persons from benefiting from the exemption — Irrefutable presumption of fraud or abuse — Not permissible

(Art. 49 TFEU; Council Directive 2011/96, as amended by Directive 2013/13, Art. 1(2))

(see paras 43-45, 48, 63, 64, 66, 77-81, operative part)

Operative part

Article 1(2) of Council Directive 2011/96/EU of 30 November 2011 on the common system of taxation applicable in the case of parent companies and subsidiaries of different Member States, as amended by Council Directive 2013/13/EU of 13 May 2013, and Article 49 TFEU must be interpreted as precluding tax legislation of a Member State, such as that at issue in the main proceedings, which imposes a withholding tax on dividends awarded by a resident subsidiary to its non-resident parent company, but which excludes the right of the latter to obtain reimbursement of or exemption from such withholding tax where, first, the shares in that parent company are held by persons who would not be entitled to such a reimbursement or such an exemption if they had received the dividends from such a subsidiary directly and that parent company has not earned its gross income for the trading year concerned from its own economic activity and, second, one of the two conditions laid down by that legislation is satisfied, namely either there are no economic or other significant reasons for the involvement of that parent company, or that company does not take part in general economic commerce with an establishment suitably equipped for its business purpose, without taking account of the organisational, economic or other significant features of the undertakings which are connected with the parent company in question.


1 OJ C 374, 6.11.2017.