Reference for a preliminary ruling from Court of Appeal (England & Wales) (Civil Division) (United Kingdom) made on 24 November 2015 – The Trustees of the BT Pension Scheme v Commissioners for Her Majesty's Revenue and Customs

(Case C-628/15)

Language of the case: English

Referring court

Court of Appeal (England & Wales) (Civil Division)

Parties to the main proceedings

Applicant: The Trustees of the BT Pension Scheme

Defendant: Commissioners for Her Majesty's Revenue and Customs

Questions referred

Given that the Court, in its answer to Question 4 in the judgment of 12 December 2006 in Case C-446/04 Test Claimants in the FII Group Litigation v Commissioners of Inland Revenue [2006] ECR 1-11753, determined that Articles 43 and 56 of the EC Treaty - now Articles 49 and 63 of the Treaty on the Functioning of the European Union - precluded legislation of a Member State which allows resident companies distributing dividends to their shareholders which have their origin in foreign-sourced dividends received by them to elect to be taxed under a regime which permits them to recover advance corporation tax paid, but, first, obliges those companies to pay that advance corporation tax and subsequently to claim repayment and, secondly, does not provide a tax credit for their shareholders, whereas those shareholders would have received such a tax credit in the case of a distribution made by a resident company which had its origin in nationally-sourced dividends: are any rights under EU law conferred on those shareholders themselves, whether under Article 63 TFEU or otherwise, in cases where they are the recipients of the dividends elected to be paid under that regime; in particular where a shareholder is resident in the same Member State as the company distributing the dividends?

If the shareholder referred to in Question 1 does not itself have rights under Article 63 TFEU, is it entitled to rely on any infringement of rights under Article 49 or Article 63 TFEU of the company distributing the dividend?

If the answer to Question 1 or Question 2 is that the shareholder has rights under or can rely on EU law, does EU law impose any requirements as to the remedy to be provided to the shareholder under domestic law?

Does it make any difference to the Court's answer to the above questions that:

the shareholder is not liable to income tax in the Member State on any dividends received, with the consequence that in the case of a distribution made by a resident company outside the above regime the tax credit to which the shareholder is entitled under domestic legislation may result in a payment of the tax credit to the shareholder by the Member State;

the national court has decided that the infringement of EU law by the domestic legislation in question was not sufficiently serious so as to give rise to a liability of the Member State in damages in favour of the company distributing the dividends, under the principles established under Joint Cases C-46/93 and C-48/93 Brasserie due Pecheur SA v Federal Republic of Germany and The Queen v Secretary of State for Transport, ex parte Factortame Limited and Others [1996] ECR 1-1029; or that

in some cases but not all, the company distributing the dividends under the above regime may have increased the amount of its distributions paid to all shareholders to provide a cash sum equivalent to that which would be achieved by an exempt shareholder from a payment of dividends outside the regime?

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