Opinion of Advocate General Wathelet in the case The Trustees of the BT Pension Scheme.
Wathelet proposes that the Court answer the questions as follows:
‘1. Article 63 TFEU confers rights on shareholders which have received foreign-sourced dividends treated as FIDs on which they may rely in legal proceedings.
2. The principle of the primacy of EU law obliges the Member States to adopt such measures as are necessary to enable any person that has suffered discrimination prohibited by, inter alia, Article 63 TFEU to obtain the payment of any sums to which it would have been entitled in the absence of such discrimination. If the effectiveness of Article 63 TFEU is to be preserved and shareholders which have received foreign-sourced dividends treated as FIDs are to be guaranteed effective judicial protection, it is necessary that they should be placed, in so far as is possible and in a manner consistent with the principles of equivalence and effectiveness, in the position they would have been in had they not suffered discrimination as a result of the national provisions in question.
3. The Court regards as irrelevant:
– the fact that, in the Member State in which it is resident, the shareholder is not liable to tax on any dividends received, with the consequence that, in the case of a distribution made by a resident company outside the FID regime, the tax credit to which the shareholder is entitled under domestic legislation could result in a payment of that tax credit to the shareholder by the Member State;
– the fact that the national court has decided that the infringement of EU law by the domestic legislation in question is not sufficiently serious to give rise to liability in damages on the part of the Member State in favour of the company distributing the dividends, in accordance with the principles established in the judgment of 5 March 1996, Brasserie du pêcheur and Factortame (C‑46/93 and C‑48/93, EU:C:1996:79), as the rights which Article 63 TFEU confers on the shareholders in question are independent of the rights conferred on the companies distributing the dividends;
– the fact that the company distributing the dividends under the abovementioned regime may have increased the amount of its distributions to all shareholders so as to pay a cash sum equivalent to that which would have been obtained by an exempt shareholder from a payment of dividends outside the FID regime.'
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