Judgment of the Court (First Chamber) of 14 December 2006 (reference for a preliminary ruling from the Conseil d'État, France) - Denkavit Internationaal BV, Denkavit France SARL v Ministre de l'Économie, des Finances et de l'Industrie

(Case C-170/05) ¹

(Freedom of establishment - Corporation tax - Payment of dividends - Exemption for dividends paid to resident companies - Withholding tax levied on dividends paid to non-resident companies - Double taxation convention - Possibility of setting off the amount withheld against tax due in another Member State)

Language of the case: French

Referring court

Conseil d'État

Parties to the main proceedings

Applicants: Denkavit Internationaal BV, Denkavit France SARL

Defendant: Ministre de l'Économie, des Finances et de l'Industrie

Re:

Reference for a preliminary ruling - Conseil d'Etat (France) - Interpretation of Art. 43 EC - Deduction of tax at source on dividends paid to a parent company established in another Member State, but exemption for dividends paid to a parent company established in France - Taxation Convention providing that the tax may be set off against the amount due in the other Member State

Operative part of the judgment

Article 43 EC and Article 48 EC preclude national legislation which, in imposing a liability to tax on dividends paid to a non-resident parent company and allowing resident parent companies almost full exemption from such tax, constitutes a discriminatory restriction on freedom of establishment;

Article 43 EC and Article 48 EC preclude national legislation which imposes, only as regards non-resident parent companies, a withholding tax on dividends paid by resident subsidiaries, even if a tax convention between the Member State in question and another Member State, authorising that withholding tax, provides for the tax due in that other State to be set off against the tax charged in accordance with the disputed system, whereas a parent company is unable to set off tax in that other Member State, in the manner provided for by that convention.

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¹ - OJ C 155, 25.6.2005.