Advocate general Jääskinen has given an opinion in the cases X BV and TBG.
Jääskinen proposes that the Court should answer the questions of the Hoge Raad as follows: For the purposes of Article 56 EC (now Article 63 TFEU) a Member State's own overseas country or territory is to be regarded as a third country in relation to that Member State. For the purposes of Article 57(1) EC (now Article 64(1) TFEU), when a withholding tax is levied on participation dividends paid by a subsidiary company established in a Member State to its holding company established in the Member State's own overseas country or territory, but which forms part of an autonomous fiscal territory, the question whether there has been an increase in restrictions applicable on 31 December 1993 must be assessed by taking into account relevant taxation measures in both the Member State and the overseas territory concerned, if the combined level of taxation is determined by a legal instrument mutually binding on both of them. In the application of Article 57 EC (now Article 61 TFEU), account must also be taken of the reduction in tax resulting from the overseas territory implementation arrangements, when those arrangements had the effect that, in 1993, the actual tax liability with respect to dividends received from a Member State subsidiary was substantially lower than the combined tax rate resulting from the measures introduced after 31 December 1993.
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