Request for a preliminary ruling from the Tribunal Tributário de Lisboa (Portugal) lodged on 8 October 2014 — SECIL — Companhia Geral de Cal e Cimento SA v Fazenda Pública
(Case C-464/14)
Language of the case: Portuguese
Referring court
Tribunal Tributário de Lisboa
Parties to the main proceedings
Applicant: SECIL — Companhia Geral de Cal e Cimento SA
Defendant: Fazenda Pública
Questions referred
1. Does Article 31 of the Agreement with Tunisia 1 constitute a provision which is clear, precise and unconditional and, as such, directly applicable, and from which it must be inferred that the right of establishment is applicable to the present case?
2. If so, does the right of establishment under that provision entail the consequences which the applicant claims, in the sense that, if that right is not to be infringed, it requires that the full deduction mechanism provided for in Article 46(1) of the CIRC [(Code on corporation tax)] be applied to the dividends which the applicant received from its subsidiary in Tunisia?
3. Does Article 34 of the Agreement with Tunisia constitute a provision which is clear, precise and unconditional and, as such, directly applicable, and from which it must be inferred that the free movement of capital is applicable to the present case and must therefore be regarded as covering the investment made by the applicant?
4. If so, does the free movement of capital under that provision have the implications which the applicant claims, inasmuch as it requires that the full deduction mechanism established in Article 46(1) of the CIRC be applied to the dividends which the applicant received from its subsidiary in Tunisia?
5. Does it result from Article 89 of the Agreement with Tunisia that the foregoing questions must be answered in the affirmative?
6. Is the restrictive treatment of the dividends distributed by Société des Ciments de Gabés justified, given that the framework for cooperation established in Council Directive 77/799/EEC 2 of 19 December 1977 concerning mutual assistance by the competent authorities of the Member States in the field of direct taxation does not exist in the case of Tunisia?
7. Do the provisions of Article 31 and Article 33(2) of the Agreement with Lebanon constitute a rule which is clear, precise and unconditional and, as such, directly applicable, and from which it must be inferred that the free movement of capital is applicable to the present case?
8. If so, does the free movement of capital under those provisions have the implications which the applicant claims, inasmuch as it requires that the full deduction mechanism established in Article 46(1) of the CIRC be applied to the dividends which the applicant received from its subsidiary in Lebanon?
9. Does it result from Article 85 of the Agreement with Lebanon 3 that the foregoing questions must be answered in the affirmative?
10. Is the restrictive treatment of the dividends distributed by Ciments de Sibline, S.A.L. justified, given that the framework for cooperation established in Council Directive 77/799/EEC of 19 December 1977 concerning mutual assistance by the competent authorities of the Member States in the field of direct taxation does not exist in the case of Lebanon?
11. Are the provisions of Article 56 EC (now Article 63 TFEU) applicable to the present case and, if so, does the free movement of capital established in that provision have the effect of requiring the application to the dividends distributed in the 2009 financial year by Société des Ciments de Gabés, S.A. and Ciments de Sibline, S.A.L. to the applicant of the full deduction mechanism provided for in Article 46(1) of the CIRC or, in the alternative, of the partial deduction mechanism provided for in Article 48(8) of the CIRC?
12. Even if the free movement of capital is considered to be applicable in the present case, may the non-application to the dividends in question of the mechanisms for the elimination or mitigation of economic double taxation provided for in the Portuguese legislation in force at that time be regarded as being justified by the fact that the framework for cooperation established in Council Directive 77/799/EEC of 19 December 1977 concerning mutual assistance by the competent authorities of the Member States in the field of direct taxation does not exist in the case of Tunisia and Lebanon?
13. Does the ‘standstill’ clause contained in Article 57(1) EC (now Article 64 TFEU) preclude the application of the free movement of capital, together with the consequences claimed by the applicant?
14. Must the ‘standstill’ clause contained in Article 57(1) EC (now Article 64 TFEU) not be applied on account of the introduction in the meantime of the scheme of tax benefits for contractual investments established in Article 41(5)(b) of the EBF [(Tax advantages scheme)] and the scheme provided for in Article 42 of the EBF for dividends from the PALOP [(Portuguese-speaking African Countries)] and East Timor?
________________________1 Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Republic of Tunisia, of the other part.
OJ 1998 L 97, p. 2.
2 OJ 1977 L 336, p. 15.
3 Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Republic of Lebanon, of the other part.
OJ 2006 L 143, p.2.