Judgment of the Court of Justice in the case SECIL on the tax treatment, for the tax year 2009, of the dividends distributed to SECIL by two companies whose seats were in Tunisia and Lebanon respectively.
the Court (Fifth Chamber) hereby rules:
1. Articles 63 and 65 TFEU must be interpreted as meaning that:
– a company established in Portugal which receives dividends from companies established in Tunisia and Lebanon respectively may rely on Article 63 TFEU in order to challenge the tax treatment of dividends in that Member State based on legislation which is not intended to apply exclusively to situations in which the beneficiary company has a decisive influence on the distributing company;
– legislation such as that at issue in the main proceedings, according to which a company which is a resident of a Member State may deduct in full or in part, from its taxable amount, dividends received where the dividends are distributed by a company which is resident in the same Member State, but cannot make such a deduction where the distributing company is resident in a non-member State, constitutes a restriction on the movement of capital between Member States and non-member States which is in principle prohibited by Article 63 TFEU;
– the refusal to grant a full or partial deduction from the taxable amount in respect of the dividends received, pursuant to Article 46(1) and (8) of the Código do Imposto sobre o Rendimento das Pessoas Coletivas (Corporation Tax Code), in the version in force in 2009, may be justified by overriding reasons in the public interest based on the need to ensure the effectiveness of fiscal supervision where it proves impossible, for the tax authorities of the Member State in which the beneficiary company is resident, to obtain information from the non-member State in which the company distributing those dividends is resident, allowing those authorities to verify whether the condition that the latter company be subject to tax is satisfied;
– the refusal to grant a partial deduction in accordance with Article 46(11) of the Corporation Tax Code, in that version, cannot be justified by overriding reasons in the general interest based on the need to ensure the effectiveness of fiscal supervision where that provision may be applied to situations in which the tax liability of the distributing company in the State in which it is resident cannot be verified, a matter which it is for the referring court to determine.
2. Article 64(1) TFEU must be interpreted as meaning that:
– in so far as the adoption of the tax benefit scheme for contractual investments established in Article 41(5)(b) of the Estatuto dos Beneficios Fiscais (Tax Advantages Scheme), in the version in force in 2009 and the scheme provided for in Article 42 of that law for dividends from the Portuguese-speaking African Countries and Timor-Leste, have not changed the legal framework for the tax treatment of dividends from Tunisia and Lebanon, the adoption of those schemes has not affected the classification, as an existing restriction, of the exclusion of dividends paid by companies established in those non-member States countries from the possibility of benefiting from a full or partial deduction;
– a Member State waives the power provided for in Article 64(1) TFEU where, without formally repealing or amending the existing rules, it concludes an international agreement, such as an association agreement, which provides, in a provision with direct effect, for a liberalisation of a category of capital referred to in Article 64(1) TFEU; such a change in the legal framework must therefore be deemed to amount, in its effects on the possibility of invoking Article 64(1) TFEU, to the introduction of new legislation, based on a logic different from that of the existing legislation.
3. Article 34(1) of the 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, signed in Brussels on 17 July 1995 and approved on behalf of the European Community and the European Coal and Steel Community by Decision 98/238/EC, ECSC of the Council and of the Commission of 26 January 1998, must be interpreted as meaning that:
– it has direct effect and may be relied on in a situation such as that at issue in the main proceedings in which a company resident in Portugal receives dividends from a company resident in Tunisia as a result of the direct investment which it has made in the distributing company, in order to challenge the tax treatment reserved for the those dividends in Portugal;
– legislation, such as that at issue in the main proceedings, according to which a company which is a resident of a Member State may deduct in full or in part, from its taxable amount, dividends received where the dividends are distributed by a company which is resident in the same Member State, but cannot make such a deduction where the distributing company is resident in Tunisia, constitutes a restriction on the free movement of capital, prohibited in principle as regards direct investment and, in particular, the repatriation of the proceeds of those investments, by Article 34(1) of that agreement;
– the effect of that provision is not limited, in a situation such as that at issue in the main proceedings, by Article 89 of that agreement;
– the refusal to grant, pursuant to Article 46(1) and (8) of the Corporation Tax Code, in the version in force in 2009, a full or partial deduction of the dividends received from the beneficiary company's taxable amount may be justified by overriding reasons in the public interest relating to the need to preserve the effectiveness of fiscal supervision where it is impossible for the tax authorities of the Member State in which the beneficiary company is resident to obtain information from the Republic of Tunisia, in which the company distributing such dividends is resident, in order to allow it to be verified that the condition relating to the tax liability of the company distributing those dividends is satisfied;
– the refusal to grant such a partial deduction in accordance with Article 46(11) of the Corporation Tax Code, in that version, cannot be justified by overriding reasons in the public interest relating to the need to preserve the effectiveness of fiscal supervision, where that provision can be applied in situations in which the distributing company's tax liability in Tunisia, in which that company is resident, cannot be verified, a matter which it is for the referring court to determine.
4. Article 31 of the Euro-Mediterranean Agreement establishing an association between the European Community and its Member States, of the one part, and the Republic of Lebanon, of the other part, signed in Luxembourg on 17 June 2002 and approved on behalf of the European Community by Council Decision 2006/356/EC of 14 February 2006, must be interpreted as meaning that:
– it has direct effect;
– a situation, such as that at issue in the main proceedings, concerning the tax treatment of dividends stemming from direct investments in Lebanon by a person resident in Portugal, falls within the situation referred to in Article 33(2) of that agreement; consequently, Article 33(1) of that agreement does not preclude Article 31 thereof from being relied on in the present case;
– legislation, such as that at issue in the main proceedings, according to which a company which is a resident of a Member State may deduct in full or in part, from its taxable amount, dividends received where the dividends are distributed by a company which is resident in the same Member State, but cannot make such a deduction where the distributing company is resident in Lebanon, constitutes a restriction on the free movement of capital, prohibited in principle by Article 31 of the Euro-Mediterranean Agreement establishing an association between the European Community and its Member States, of the one part, and the Republic of Lebanon, of the other part;
– the effect of that provision is not limited, in a situation such as that at issue in the main proceedings, by Article 85 of that agreement;
– the refusal to grant, pursuant to Article 46(1) and (8) of the Corporation Tax Code, in the version in force in 2009, a full or partial deduction from the beneficiary company's taxable amount of the dividends received may be justified by overriding reasons in the public interest relating to the need to preserve the effectiveness of fiscal supervision where it is impossible for the tax authorities of the Member State in which the beneficiary company is resident to obtain information from the Republic of Lebanon, the State in which the companies distributing such dividends are resident, allowing it to be verified that the condition relating to the tax liability of the company distributing those dividends is satisfied;
– the refusal to grant such a partial deduction in accordance with Article 46(11) of the Corporation Tax Code, in that version, cannot be justified by overriding reasons in the public interest based on the need to preserve the effectiveness of fiscal supervision, where that provision can be applied in situations in which the distributing company's liability to tax in Lebanon, where that company is resident, cannot be verified, a matter which it is for the referring court to determine.
5. As regards the consequences for the case at issue in the main proceedings, of the interpretation of Articles 63 to 65 TFEU and the 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, and the Euro-Mediterranean Agreement establishing an association between the European Community and its Member States, of the one part, and the Republic of Lebanon, of the other part:
– where the authorities of the Member State in which the beneficiary company is resident can obtain information from the Republic of Tunisia, the State in which the company paying the dividends is resident, allowing them to verify that the condition relating to the tax liability of the company distributing these dividends is satisfied, Articles 63 and 65 TFEU and Article 34(1) of the 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, preclude the refusal to grant, pursuant to Article 46(1) or Article 46(8) of the Corporation Tax Code, in the version in force in 2009, a full or partial deduction from the taxable amount of the company receiving the dividends distributed, and the Portuguese Republic may not rely, in this respect, on Article 64(1) TFEU;
– Articles 63 and 65 TFEU and Article 34(1) of the 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, and Article 31 of the Euro-Mediterranean Agreement establishing an association between the European Community and its Member States, of the one part, and the Republic of Lebanon, of the other part preclude the refusal to grant, pursuant to Article 46(11) of the Corporation Tax Code, in the version in force in 2009, a partial deduction from the taxable amount of the company receiving the dividends distributed, where that provision may be applied in situations in which the tax liability of the distributing companies in Tunisia and Lebanon, where those companies are resident, cannot be verified, a matter which it is for the referring court to determine, and the Portuguese Republic may not rely on Article 64(1) TFEU in that regard;
– the amounts collected in breach of Union law must be repaid, with interest, to the taxpayer.
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