Opinion of Advocate General Kokott in the case X on the Belgian fairness tax.
Kokott suggests that the request from the Grondwettelijk Hof for a preliminary ruling should be answered as follows:
(1) Article 49 in conjunction with Article 54 TFEU is to be interpreted as not precluding legislation of a Member State which provides that
a) a non-resident company with a profit-making permanent establishment in that Member State is subject to a tax under certain conditions when it distributes profits, whereas a non-resident company with a subsidiary in that Member State is not subject to such tax;
b) a non-resident company with a profit-making permanent establishment in that Member State that retains in full the profits generated there is subject to a tax under certain conditions when it distribute profits, whereas a resident company is not subject to such tax when it retains profits in full;
(2) National legislation that subjects a company to additional taxation of revenue when it distributes profits does not constitute a withholding tax within the meaning of Article 5 of Directive 2011/96/EU.
(3) Article 4(3) of the directive 2011/96/EU precludes national legislation that has the effect of subjecting a company to a tax burden that exceeds the amount allowed under Article 4(3) when it distributes profits with respect to dividends that it has, within the scope of the directive, received and then redistributes.
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