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OPINION OF ADVOCATE GENERAL

KOKOTT

delivered on 16 July 2009 1(1)

Case C-540/07

Commission of the European Communities

v

Italian Republic

(Failure of a Member State to fulfil obligations – Free movement of capital – Article 56 EC – Article 31 and Article 40 of the EEA Agreement – Direct Taxation – Withholding tax on outgoing dividends – Credit at the seat of the dividend recipient under a double taxation convention)






I –  Introduction

1.        In these proceedings the Commission is objecting to the Italian rules on withholding tax on dividends. Dividends distributed by Italian undertakings to companies in another Member State or a State party to the Agreement on the European Economic Area (‘outgoing dividends’) are subject to higher taxation than dividends distributed to domestic recipients. This means that Italy has failed to fulfil its obligations concerning the free movement of capital and – in relation to the States party to that agreement – its obligations in relation to freedom of establishment.

2.        The Italian Republic’s defence is inter alia that all double taxation conventions concluded by it contain clauses providing for withholding tax to be credited at the seat of the dividend recipient.

3.        The Court has already ruled in a number of decisions that where higher withholding tax is imposed on outgoing dividends a Member State cannot escape its obligations by relying upon the possibility of offsetting the tax unilaterally provided for in the recipient State. (2) However, it has as yet left unanswered the question whether a possibility of offsetting withholding tax provided under a double taxation convention precludes the infringement of fundamental freedoms. (3)

II –  Legal framework

A –    Community law

4.        Articles 56 and 58 EC form the legal framework for the proceedings in so far as they relate to the relationship between Italy and other Member States.

5.        Council Directive 90/435/EEC of 23 July 1990 on the common system of taxation applicable in the case of parent companies and subsidiaries of different Member States (4) is also relevant.

6.        The version of Article 3(1) of the directive in force at the material time required a minimum holding of 20% in order to be considered a parent or subsidiary company. (5) Article 4 of the directive provides that the State of the parent company should either refrain from taxing profits received by a parent company from a subsidiary in another Member State or tax such profits while deducting the amount of tax paid by the subsidiary at its seat. Article 5 of the directive finally provides that profits which are distributed by a subsidiary are exempt from withholding tax.

7.        As far as the relationship between Italy and the States party to the EEA Agreement is concerned, the Commission also cites Articles 31 and 40 of the Agreement on the European Economic Area of 2 May 1992 (6) (‘the EEA Agreement’), which read as follows:

‘Article 31

1. Within the framework of the provisions of this Agreement, there shall be no restrictions on the freedom of establishment of nationals of an EC Member State or an EFTA State in the territory of any other of these States. This shall also apply to the setting up of agencies, branches or subsidiaries by nationals of any EC Member State or EFTA State established in the territory of any of these States.

Freedom of establishment shall include the right to take up and pursue activity as self-employed persons and to set up and manage undertakings, in particular companies or firms within the meaning of Article 34, second paragraph, under the conditions laid down for its own nationals by the law of the country where such establishment is effected, subject to the provisions of Chapter 4.

2. Annexes VIII to XI contain specific provisions on the right of establishment.

…

Article 40

Within the framework of the provisions of this Agreement, there shall be no restrictions between the Contracting Parties on the movement of capital belonging to persons resident in EC Member States or EFTA States and no discrimination based on the nationality or on the place of residence of the parties or on the place where such capital is invested. Annex XII contains the provisions necessary to implement this Article.’

B –    Italian legislation

1.      Taxation of dividends in the hands of domestic recipients

8.        In Italy, dividends that are distributed to companies and commercial entities (and sometimes, on a temporary basis, to non-commercial entities) are subject to corporation tax (imposta sul reddito delle società – IRES) under Decreto legislativo No 344 (decree-law) of 12 December 2003 on the reform of corporation tax pursuant to Article 4 of the Law of 7 April 2003 No 80 (Riforma del’imposizione sul reddito delle società, a norma dell’articolo 4 della legge 7 aprile 2003, n. 80). (7)

9.        Since that reform the taxation of dividends has been governed by Article 89(2) of the Testo unico delle imposte sui redditi – TUIR, which was introduced by Decree of the President of the Republic No 917 of 22 December 1986. (8) The provision reads as follows:

‘(a)      Profits distributed, in any form and under any name whatsoever, even in cases under Article 47(7), by companies and other entities referred to in Article 73(1) (a) and (b), shall not constitute income for the year in which they were made, as they are excluded as to 95% of their amount from the income of the recipient company or entity. ...’

10.      Article 73(1)(a) and (b) of the TUIR defines entities subject to corporation tax as follows:

‘(a)      public limited companies and partnerships partly limited by shares, private companies, cooperatives and mutual societies, which have their seat in Italy;

(b)      private and public entities that are not companies but have their seat in Italy and whose objectives are wholly or principally the conduct of commercial transactions’.

2.      Taxation of outgoing dividends

11.      A withholding tax is levied on dividends paid to other Member States and States party to the EEA Agreement under Article 27(3) of the Decree of the President of the Republic No 600 of 29 September 1973 on common rules for the calculation of income tax (Disposizioni comuni in materia di accertamento delle imposte sui redditi, ‘DPR 600/73’). (9) The provision reads as follows:

‘Tax of 27% shall be withheld from profits that are distributed to taxpayers not resident in Italy. The rate of tax withheld shall be reduced to 12.5% for profits that are paid to holders of savings shares. Non-resident taxpayers, with the exception of holders of savings shares, shall be entitled to reimbursement of tax proven to have ultimately been paid abroad on those profits in the maximum amount of four-ninths of the tax withheld. Proof shall be provided in the form of a certificate from the competent tax office in the foreign State.’

12.      Article 27a of DPR 600/73 provides for the repayment of withholding tax and, in certain cases, exemption from that tax for companies which are established in other Member States and which reach the thresholds for holdings and duration of holdings laid down in Directive 90/435.

13.      According to information provided by the Italian Government and the Commission in answer to a question put by the Court, there are double taxation conventions in place between Italy and all Member States – with the exception of Slovenia – and with the EEA States of Norway and Iceland.

14.      The double taxation conventions are based on the OECD Model Convention. They allocate the right to tax dividends, in principle, to the State in which the dividend recipient is resident but allow withholding tax of no more than 15% (10% under the agreements with Bulgaria, Poland, Romania and Hungary) to be levied in the State in which payment is made. In some of the conventions provision is made for the rate of withholding tax to be reduced to 0%, 5% or 10% where the holding exceeds a certain threshold (e.g. 10%, 25% or 50% of the shares). (10) To avoid double taxation all of the conventions impose an obligation on the State in which the dividend recipient is resident to credit withholding tax levied in Italy in an amount up to the tax owed on that income in the State of residence (ordinary credit).

III –  Pre-litigation procedure and the action brought

15.      The Commission launched an investigation under Article 109(4) of the EEA Agreement in response to a complaint by a Norwegian undertaking as to the tax treatment of dividends distributed by Italian companies to Norwegian recipients. It later expanded the procedure to also cover the tax regime for dividends whose recipients are established in EC Member States and, on 18 October 2005, sent a letter of formal notice to the Italian Republic pursuant to Article 226 EC. The latter provided an explanation in a letter of 9 February 2006.

16.      As the answer did not satisfy the Commission it sent a reasoned opinion on 4 July 2006 and gave Italy a period of two months in which to terminate the infringement of the Treaty provisions. Italy did not respond until 30 January 2007, by letter. In a further letter of 9 October 2007 Italy finally submitted the draft of an amendment to DPR 600/73, which came into force on 1 January 2008.

17.      On 30 November 2007 the Commission instituted the present proceedings claiming that the Court should:

(1)      declare that, by keeping in force a tax system which is more onerous for dividends distributed to companies established in the other Member States and in the States party to the Agreement on the European Economic Area compared to that applied to domestic dividends, the Italian Republic has failed to fulfil its obligations under Articles 56 EC and 40 of the Agreement on the European Economic Area concerning the free movement of capital between the Member States and that between the States party to the agreement in question, as well as its obligations under Article 31 of that agreement in relation to the freedom of establishment between the States party to that agreement;

(2)      order the Italian Republic to pay the costs.

18.      The Italian Republic contends that the proceedings should be dismissed and the Commission ordered to pay the costs.

19.      The Commission is essentially criticising the fact that dividends that are distributed by Italian undertakings to domestic companies are taxed at a lower rate than dividends distributed to another Member State or a State party to the EEA Agreement.

20.      In the case of parties liable to corporation tax in Italy, dividends have a 95% tax exemption under Article 89(2) of the TUIR. As only 5% of dividends are subject to the general 33% rate of corporation tax, for a dividend of EUR 100 the tax ultimately payable would be EUR 1.65.

21.      In the case of recipients abroad, Article 27 of DPR 600/73 provides for withholding tax of 27%. A maximum of four-ninths of that tax could be refunded upon an application being made. In the case of a dividend of 100, therefore, the tax paid is 15 (five ninths of 27% of 100). Where there is a double taxation convention in place the tax is admittedly reduced in part to rates of 5% and 10% but this is still higher than for dividends to domestic recipients, as claimed by the Commission – taking as examples the conventions that Italy has concluded with France, the Netherlands, the United Kingdom and Norway.

22.      Undertakings in other Member States are only affected by the higher withholding tax, however, if the holding threshold provided for in Directive 90/435 is not reached. If the threshold is reached, Article 27a of DPR 600/73 provides for reimbursement of the withholding tax and, in certain cases, tax exemption. With regard to dividends that are paid to other Member States, therefore, the Commission is objecting only to an infringement of the free movement of capital.

23.      In the case of dividends paid to States party to the EEA Agreement Italy charges withholding tax not only on portfolio investments but also on holdings that exert significant influence. Hence, the Commission considers that there is an infringement of the principles of free movement of capital and freedom of establishment enshrined in the EEA Agreement.

A –    Admissibility

24.      The Italian Republic considers the proceedings inadmissible because the complaint raised in the proceedings is not sufficiently specific. The Commission cited the unilateral rules on withholding tax on outgoing dividends and some of the double taxation conventions concluded with other Member States and with one State party to the EEA Agreement. It concluded from this that the whole regime of taxation on outgoing dividends was incompatible with Community law without having undertaken a detailed analysis of all of the relevant provisions.

25.      In this regard, it should be noted that Article 38(1)(c) of the Rules of Procedure state that any application must contain, in particular, the subject-matter of the proceedings and a summary of the pleas in law on which the application is based. Accordingly, in any application made under Article 226 EC, the Commission must set out the complaints coherently and precisely to enable the Member State to prepare its defence and the Court to determine whether there is a breach of obligations as alleged. (11)

26.      The application in the present proceedings clearly shows which provisions of Community law the Italian Republic is alleged to have infringed. The facts on which the infringement is said to be based are also set out, that is to say the differing tax burden on dividends according to whether they are paid to other Member States and States party to the EEA Agreement or to domestic recipients. Finally, the Commission referred to the national rules on the taxation of dividends. The Italian Republic was therefore immediately able to prepare its defence to the complaint.

27.      The Commission admittedly did not, in its application, cite the relevant provisions of all of the double taxation conventions that Italy has concluded with the Member States and States party to the EEA Agreement, confining itself to giving a few typical examples of Italian practice in such conventions. (12) The question whether the Commission has succeeded in adducing evidence of the Treaty infringement criticised with regard to all States is not an issue of admissibility, however, but of substance.

28.      The objection of inadmissibility must therefore be dismissed.

B –    Substance

1.      Infringement of Article 56 EC in relation to dividends paid to other Member States

a)      Existence of a (reprehensible) restriction

29.      A measure that makes the cross-border transfer of capital more difficult or less attractive and is therefore liable to discourage investors constitutes a restriction on the free movement of capital. (13) In Amurta the Court has already ruled that treating outgoing dividends less favourably for tax purposes than dividends distributed to domestic recipients constitutes a restriction prohibited, in principle, by Article 56(1) EC. (14)

30.      As stated by the Commission, without any objection being forthcoming from the Italian Government, dividends that are distributed to other Member States are subject in Italy to tax of between 5% and 15% unless Directive 90/435 applies. Conversely, however, dividends distributed to domestic recipients are in practice liable only to tax of 1.65%.

31.      The Italian Government contends, however, that the Community-law requirements for the tax treatment of outgoing dividends had still been unclear by the expiry, on 4 September 2006, of the deadline given in the reasoned opinion. The relevant judgments in Denkavit Internationaal and Denkavit France and Amurta were not pronounced until later. (15) In these circumstances it could not be argued as against a Member State that the incompatibility of national legislation with fundamental freedoms constituted a failure to fulfil an obligation under the Treaty within the meaning of Article 226 EC.

32.      That view cannot be accepted.

33.      A finding of a failure to fulfil obligations under the Treaty under Article 226 EC does not require the infringement of fundamental freedoms by national legislation to be evident. Nor is it necessary for the Court, in earlier decisions, to have already delivered a corresponding interpretation of fundamental freedoms with regard to comparable provisions. Article 226 EC would be deprived of most of its practical effect if the Commission were to be prevented from instituting proceedings for failure to fulfil obligations under the Treaty before relevant decisions had been taken by the Court, such as in proceedings under Article 234 EC. That would mean that the initiative in pursuing Treaty infringements would be taken from the Commission and passed to the national referring courts.

34.      The Italian Government also claims that Member States are not prohibited in all circumstances outside the scope of application of Directive 90/435 from charging a withholding tax on outgoing dividends. That would constitute unlawful discrimination only if both non-resident and resident dividend recipients were to be in a comparable situation but were nevertheless treated differently. If one takes into account the offsetting of the withholding tax provided for in the double taxation conventions the non-resident dividend recipients are not penalised.

35.      In that regard, it must be pointed out that, in respect of shareholdings which are not covered by Directive 90/435, it is for the Member States to determine whether, and to what extent, economic double taxation of distributed profits is to be avoided and, for that purpose, to establish, either unilaterally or through double taxation conventions concluded with other Member States, procedures intended to prevent or mitigate such economic double taxation. However, this does not of itself mean that the Member States are entitled to impose measures that contravene the freedoms of movement guaranteed by the EC Treaty. (16)

36.      The established difference in treatment between dividends distributed in Italy and outgoing dividends does, in principle, constitute a restriction on the free movement of capital prohibited under Article 56(1) EC. However, it is necessary to examine whether that restriction is justified.

b)      Justification for the restriction

i)      General conditions governing justification

37.      Under Article 58(1)(a) EC ‘[t]he provisions of Article 56 shall be without prejudice to the right of Member States to apply the relevant provisions of their tax law which distinguish between taxpayers who are not in the same situation with regard to their place of residence …’.

38.      The derogation in Article 58(1)(a) EC is itself limited by Article 58(3) EC, according to which the provisions of national law referred to in Article 58(1) EC ‘shall not constitute a means of arbitrary discrimination or a disguised restriction on the free movement of capital and payments as defined in Article 56’. (17)

39.      It is therefore appropriate to distinguish unequal treatment permitted under Article 58(1) (a) EC from discrimination prohibited under Article 58(3). According to the case-law, for a national fiscal provision such as that at issue in the main proceedings to be capable of being regarded as compatible with the provisions of the Treaty on the free movement of capital, the difference in treatment must concern situations which are not objectively comparable or be justified by overriding reasons in the public interest. (18)

40.      It is therefore necessary to examine whether the dividend recipients liable to corporation tax who are established in Italy and those who are established in another Member State are in a comparable situation with regard to the objective of the national legislation at issue in the main proceedings.

41.      The aim of the rules on the taxation of dividends that are distributed to recipients liable to corporation tax who have their seat in Italy is to avoid double taxation and prevent the same income from being subjected to a series of charges to tax.

42.      The Court has already held that, in the context of measures laid down by a Member State in order to prevent or mitigate the imposition of a series of charges to tax on, or the economic double taxation of, profits distributed by a resident company, resident shareholders receiving dividends are not necessarily in a situation which is comparable to that of shareholders receiving dividends who are resident in another Member State. (19)

43.      However, as soon as a Member State, either unilaterally or by way of a convention, imposes a charge to income tax not only on resident shareholders but also on non-resident shareholders in respect of dividends which they receive from a resident company, the position of those non-resident shareholders becomes comparable to that of resident shareholders. (20)

44.      The risk of juridical and economic double taxation exists in the case of cross-border dividend payments in the same way as with internal payments.

45.      There is juridical double taxation of the same income where dividends on which withholding tax has already been charged are included, in the hands of the recipient, in the basis of assessment of corporation tax and are taxed again there without the withholding tax being credited in full. There is economic double taxation where dividends are distributed to companies which themselves distribute dividends. Without special procedures for the avoidance of double taxation in that situation the same income would be subject to tax again and again at various levels.

46.      The Italian legislature counters juridical double taxation in the case of dividends paid to domestic recipients by refraining from charging withholding tax on dividends and subjecting them, in principle, to just corporation tax in the hands of the recipient. So as to also by and large reduce the burden of economic double taxation, however, in the hands of the recipient the dividends are only included in the basis of assessment of corporation tax at 5% of the amount of the dividend.

47.      If Italy also exercises its taxing powers over outgoing dividends and if non-resident recipients are therefore in a comparable position to that of resident recipients as regards the risk of juridical and economic double taxation, then according to case-law that Member State is obliged to ensure that non-resident recipients are subject to the same treatment as resident recipients. (21)

ii)    Neutralisation of withholding tax by a credit in the State of residence

48.      To justify the difference in treatment of outgoing dividends the Italian Republic relies upon the argument that all of the double taxation conventions provide for the offsetting of withholding tax in the dividend recipient’s State of residence.

49.      It should first be noted that, by its own admission in the proceedings, the Italian Republic has not concluded any double taxation convention with Slovenia. Hence, it immediately follows that there is no such justification with regard to that Member State. It is still necessary to examine whether there is justification for the less favourable tax treatment of dividends that are paid to other Member States.

50.      It should be recalled that it is settled case-law that unfavourable tax treatment contrary to a fundamental freedom cannot be justified by the existence of other tax advantages. (22) This particularly applies in the case of the grant of a unilateral advantage by another Member State. (23) To accept the contrary would, in essence, be tantamount to allowing a Member State to avoid its obligations under Community law by making compliance dependent on the possible effects of the national legislation of another Member State, which may be amended unilaterally at any time by that State. (24)

51.      The Court has not excluded the possibility that a Member State might succeed in ensuring compliance with its obligations under the Treaty through the conclusion of a convention for the avoidance of double taxation with another Member State. (25) The double taxation conventions concluded by a Member State form part of its legal system and therefore come within the legal framework for the tax treatment of outgoing dividends. (26) Furthermore, these conventions are also binding on the other Member State concerned and although they can be terminated, if need be, they cannot readily be amended unilaterally.

52.      The double taxation conventions referred to by the Italian Government would have to completely neutralise the difference in treatment of outgoing dividends in order to override the restriction on the free movement of capital.

–       First hypothesis: the withholding tax is offset in full in the State of residence

53.      The consequences of charging withholding tax would be redressed if the State of residence of a company that receives dividends from Italy were to subject those dividends to corporation tax and fully offset the withholding tax against that corporation tax in accordance with the rules under a double taxation convention.

54.      Admittedly, the outgoing dividends would ultimately be taxed at a higher rate than dividends distributed to Italian companies. However, that higher tax burden would not be attributable to Italy. (27) It would be the result of an autonomous decision by the State of residence of the recipient company. Italy would be neither obliged to correct that decision nor able to do so. (28)

55.      Even if Italy were to refrain from charging withholding tax the dividends would still be subject to the same amount of taxation by the recipient company’s State of residence, with the sole difference that the tax revenue would accrue to the State of residence alone and would not be reduced by the offsetting of withholding tax. As a result of the taxation at source conceded in the double taxation convention Italy merely shares, as it were, in the tax revenue that the State of residence receives as a result of its decision to tax dividends distributed to companies.

56.      The less favourable tax treatment of non-resident companies compared to Italian dividend recipients results in these circumstances from differences in tax systems with regard to the avoidance of economic double taxation on dividends. These differences do not contravene Community law per se. The EC Treaty offers no guarantee that exactly the same amount of tax will be charged in all Member States on comparable income. (29) It is also for the Member States to determine whether, and in what manner, they should avoid the economic double taxation of dividends distributed to companies.

–       Second hypothesis: the withholding tax cannot be offset in full in the State of residence

57.      The neutralisation of withholding tax is frustrated, however, where the State of residence of a company that receives dividends from Italy does not tax that income at all or does not tax it in an amount which enables the withholding tax to be offset in full.

58.      The conventions require only ordinary offsetting (ordinary credit) and not full offsetting (full credit). In the case of ordinary credit the foreign withholding tax can be offset in the recipient company’s State of residence only up to the amount of the domestic tax on the corresponding income. If the income is not taxed, or not taxed in an adequate amount, in the State of residence, there remains a part of the withholding tax from Italy that cannot be credited. In that eventuality the withholding tax on outgoing dividends results in a tax burden, attributable to Italy alone, which exceeds the tax that companies resident in Italy have to pay on such dividends. (30)

59.      It must be concluded, in summary, that the offsetting of withholding tax an abstract provision for which is made in the double taxation conventions does not, on its own, make up for the difference in treatment of outgoing dividends and nationally distributed dividends as a result of charging that tax. Neutralisation of the effect of withholding tax also turns on the structure of taxation in the recipient’s State of residence. This is beyond the influence of the Italian Republic, however, and can also be unilaterally changed by the other Member State at any time without a double taxation convention preventing it.

60.      As already stated, a Member State that treats cross-border situations less favourably for tax purposes than the same purely national circumstances cannot rely on the other Member State unilaterally making up for that difference in treatment. This is the case here, however, despite the offsetting facility provided for in the double taxation conventions. It therefore follows that the restriction on the free movement of capital due to the taxation of outgoing dividends is not justified by the offsetting facility provided for in the double taxation conventions.

iii) Justification based on an overall assessment of the tax system, fiscal coherence and apportionment of taxation powers

61.      The Italian Government pleads as further justification that an overall assessment of the Italian tax system would show that in the final resort dividends distributed in Italy do not receive better treatment than outgoing dividends. In this context it compares the overall tax burden, including tax levied on natural persons who receive the dividends as ultimate recipients, with withholding tax on dividends distributed to non-resident companies.

62.      As the Commission correctly states, however, the Italian Government is here comparing two differing situations. Withholding tax is imposed on dividends distributed to a company that is established in another Member State. The taxation of those dividends cannot be compared with the overall taxation that a company established in Italy has to pay on dividends received by it and which shareholders of that company have to pay as a whole. Finally, the shareholders of a non-resident company might also directly or indirectly be natural persons who normally also have to pay tax in their State of residence on dividends distributed by intermediate companies. However, the Italian Government ignores that foreign taxation in its comparison.

63.      In so far as the Italian Government also relies upon fiscal cohesion and maintenance of the balanced allocation of the power to impose taxes, (31) it fails to show the extent to which the difference in treatment of outgoing dividends ensures compliance with those principles.

iv)    Justification based on the prevention of tax evasion

64.      The Defendant finally also argues that the rule serves to prevent tax evasion. Parties liable to tax in Italy could hide behind a non-resident company and in that way evade tax on dividends.

65.      In accordance with settled case-law, the prevention of tax evasion can be accepted as justification for a measure restricting fundamental freedoms only if the legislation restricting the fundamental freedoms is aimed at wholly artificial arrangements the objective of which is to circumvent the tax laws. Consequently, a general presumption of tax avoidance or tax evasion cannot justify a fiscal measure which compromises the objectives of the Treaty. (32)

66.      In principle, however, withholding tax has to be paid on all dividends distributed to non-resident companies even if there is no concrete indication that the company concerned was only artificially inserted as intermediary by resident taxpayers in order to avoid income tax on dividends in Italy.

67.      Council Directive 77/799/EEC of 19 December 1977 concerning mutual assistance by the competent authorities of the Member States in the field of direct and indirect taxation (33) also makes it possible, in relationships between Member States, for the authorities in the State of residence of the company that receives the dividends to request information as to the identity of the shareholders.

68.      Nor can the Italian Republic therefore, in justification of less favourable treatment of dividends paid to other Member States, rely on the argument that the rules concerned are necessary in order to prevent tax evasion.

v)      Interim conclusion

69.      Thus, by way of interim conclusion it must be held that the Italian Republic has failed to fulfil its obligations under Article 56(1) EC in retaining tax legislation which is more unfavourable for dividends that are distributed to companies resident in other Member States than for dividends that are paid to resident companies.

2.      Infringement of the provisions of the EEA Agreement

a)      Free movement of capital under Article 40 of the EEA Agreement

70.      The Court has recently confirmed once again that Article 40 of the EEA Agreement has the same legal scope as the substantially identical provisions of Article 56 EC. (34) Consequently, restrictions on the free movement of capital between nationals of States party to the EEA Agreement must be assessed according to the same criteria as corresponding measures in an intra-Community context.

71.      The findings established in the context of the examination of Article 56(1) EC therefore apply mutatis mutandis to the alleged infringement of Article 40 of the EEA Agreement. Hence, the Italian legislation, including double taxation conventions, which compared to domestic dividend distributions provides for higher taxation on dividends distributed to companies situated in a State party to the EEA Agreement, constitutes a restriction on the free movement of capital within the meaning of Article 40 of the EEA Agreement. (35)

72.      Nor can this restriction be justified in relation to the States party to the EEA Agreement in reliance upon the offsetting facility under the double taxation conventions. There is no such convention in existence between Italy and Liechtenstein. In relation to Iceland and Norway the offsetting facility, as in the case of the Member States, does not, on its own, ensure that the withholding tax is neutralised. This is more contingent on the national structuring of the taxation of dividends in the particular State party to the EEA Agreement.

73.      The Italian Government also argues that the less favourable rules on outgoing dividends are justified for reasons based on the prevention of tax evasion. It argues that Directive 77/799 does not apply in the States party to the EEA Agreement. In the case of Liechtenstein, furthermore, in the absence of a double taxation convention there is no clause on the provision of information that can apply. Consequently, the Italian tax authorities could not obtain information necessary to prevent tax evasion.

74.      It is therefore necessary to consider whether the charging of withholding tax on dividends paid to States party to the EEA Agreement (and the associated restriction on the free movement of capital) is justified in order to prevent tax evasion even though it does not specifically address artificial arrangements. (36)

75.      The Court has also ruled in its judgment in the case of A that the legal framework for the exercise of the right of free movement of capital differs in relation to third countries from the intra-Community conditions. It found it to be material, in particular, that there is no instrument comparable with Directive 77/799 in existence for relationships with third countries, which enables information to be obtained. (37)

76.      Not even the possibility of the taxpayer spelling out the criteria that would have to be satisfied in order for a tax advantage to be granted would necessarily justify the favourable tax treatment of domestic circumstances being extended to cases with a third-country connection. Because of the absence of a convention obligation on the third country to submit information it might prove impossible to obtain from that country the information necessary to check the details of the taxpayer with regard to the structure of a company resident in the third country, for instance. (38)

77.      The exemption of dividends from withholding tax and their wide exemption from corporation tax is granted to companies established in Italy because the corresponding income is only to be subjected to taxation once in the hands of natural persons at the end of the dividend distribution chain. In order to be able to rule out tax evasion in this context the tax authorities must be able to establish that a natural person has received such dividend distributions. For this purpose it may be necessary, in particular, to establish the identity of the group of shareholders of a company distributing a dividend.

78.      This is not possible in the case of companies which have their registered offices in Liechtenstein as there is no legal basis for such requests for information to be put to that State party to the EEA Agreement.

79.      With regard to the relationship with Iceland and Norway, the double taxation conventions might contain an obligation to provide information. This would mean that the charging of withholding tax on dividends paid to those countries might possibly be just as disproportionate as in the case of dividends whose recipients are situated in another Member State.

80.      However, it is not for the Court in these proceedings to decide whether clauses on the provision of information are actually contained in the conventions, as provided in Article 26 of the OECD Modern Convention, for instance, or what actual scope they might have. As the Italian Government said that it was unable to obtain sufficient information it would have been for the Commission to rebut that assertion by referring, for instance, to clauses providing for information under convention law.

81.      However, the Commission has only stated that it cannot see what information is needed to apply the taxation system. As already stated, however, it might be necessary, in particular, to establish the identity of shareholders of a company who have received dividends from Italy. Consequently, the Commission has not succeeded in rebutting the defence put forward by the Italian Republic.

82.      The Commission has therefore not proven that the less favourable treatment of dividends paid to Norway and Iceland infringes the free movement of capital guaranteed in Article 40 of the EEA Agreement.

b)      Freedom of establishment under Article 31 of the EEA Agreement

83.      The Commission also claims that there has been an infringement of the principle of freedom of establishment guaranteed in Article 31 of the EEA Agreement. However, the Commission has not proven that infringement for the same reasons as given for the infringement of Article 40 of the EEA Agreement.

84.      Consequently, the application must be dismissed insofar as it is claimed that there has been an infringement of Articles 31 and 40 of the EEA Agreement.

IV –  Costs

85.      Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Although the application should be dismissed with regard to the tax treatment of dividends distributed to companies established in States party to the EEA Agreement, the Italian Republic is, for the most part, the losing party. It must therefore be ordered to pay the costs.

V –  Conclusion

86.      I therefore propose that the Court should:

(1)      declare that, by keeping in force a tax system which is more onerous for dividends distributed to companies established in another Member State than that applied to dividends paid to domestic companies, the Italian Republic has failed to fulfil its obligations under Article 56(1) EC;

(2)      dismiss the action as to the remainder;

(3)      order the Italian Republic to bear the costs of the proceedings.

1 – Original language: German.

2 – Case C-379/05 Amurta [2007] ECR I-9569, paragraph 78. See, also, to that effect, the Case C-43/07 Arens-Sikken [2008] ECR I-6887, paragraph 66, and Case C-11/07 Eckelkamp [2008] ECR I-6845, paragraph 69.

3 – Case C-374/04 Test Claimants in Class IV of the ACT Group Litigation [2006] ECR I-11673, paragraph 71, and Amurta (cited in footnote 2, paragraph 79).

4 – OJ 1990 L 225, p. 6, as amended by Council Directive 2003/123/EC of 22 December 2003, OJ 2004 L 7, p. 41.

5 – The minimum holding was reduced on 1 January 2007 to 15% and on 1 January 2009 to 10%.

6 – OJ 1994 L 1, p. 3.

7 – GURI no. 291 of 16 December 2003.

8 – GURI no. 302 of 31 December 1986.

9 – GURI no. 268 of 16 October 1973, as amended by DL 344/2003.

10 – As far as the Member States are concerned, the significance of tax reductions for intercorporate dividends must now have virtually disappeared as, since 1 January 2009, Directive 90/435 entirely rules out the charging of withholding tax for a minimum holding percentage of more than 10%.

11 – Case C-490/04 Commission v Germany [2007] ECR I-6095, paragraph 30 and the case-law cited.

12 – The application contains excerpts from the double taxation conventions that Italy has concluded with France, the United Kingdom, the Netherlands and Norway.

13 – See, to that effect, Case C-222/97 Trummer and Mayer [1999] ECR I-1661, paragraph 26, and Case C-101/05 A [2007] ECR I-11531, paragraph 40.

14 – Amurta (cited in footnote 2, paragraph 28). See in relation to the restriction of freedom of establishment by corresponding measures, Case C-170/05 Denkavit Internationaal andDenkavitFrance [2006] ECR I-11949, paragraph 29.

15 – I would point out purely incidentally that Advocate General Geelhoed had, however, already delivered his Opinion in Denkavit Internationaal and Denkavit France (cited in footnote 14) on 27 April 2006. He made it quite clear in that Opinion that the charging of a withholding tax on outgoing dividends is incompatible with fundamental freedoms if internally distributed dividends are exempt from any tax.

16 – See Test Claimants in Class IV of the ACT Group Litigation (cited in footnote 3, paragraph 54), Amurta (cited in footnote 2, paragraph 24) and Case C-303/07 Aberdeen Property Fininvest Alpha [2009] ECR I-0000, paragraph 28.

17 – Amurta (cited in footnote 2, paragraph 31).

18 – See Case C-35/98 Verkooijen [2000] ECR I-4071, paragraph 43, Case C-319/02 Manninen [2004] ECR I-7477, paragraph 29, and Amurta (cited in footnote 2, paragraph 32).

19 – Denkavit Internationaal and Denkavit France (cited in footnote 14, paragraph 34) and Amurta (cited in footnote 2, paragraph 37).

20 – Test Claimants in Class IV of the ACT Group Litigation (cited in footnote 3, paragraph 68), Denkavit Internationaal and Denkavit France (cited in footnote 14, paragraph 35) and Amurta (cited in footnote 2, paragraph 38).

21 – Test Claimants in Class IV of the ACT Group Litigation (cited in footnote 3, paragraph 70) and Amurta (cited in footnote 2, paragraph 39).

22 – Verkooijen (cited in footnote 18, paragraph 61); Amurta (cited in footnote 2, paragraph 75); Arens-Sikken (cited in footnote 2, paragraph 66) and Eckelkamp (cited in footnote 2, paragraph 69).

23 – Amurta (cited in footnote 2, paragraph 78).

24 – Opinion delivered by Advocate General Mengozzi on 7 June 2007 (Amurta, cited in footnote 2, point 78).

25 – Amurta (cited in footnote 2, paragraph 79) referring to the judgment in Test Claimants in Class IV of the ACT Group Litigation (cited in footnote 3, paragraph 71). Also, to that effect, Arens-Sikken (cited in footnote 2, paragraph 64).

26 – See Manninen (cited in footnote 18, paragraph 21), Case C-265/04 Bouanich [2006] ECR I-923, paragraph 51, and point 44 et seq. of my Opinion in that case, and the judgment in Denkavit Internationaal and Denkavit France (cited in footnote 14, paragraph 45).

27 – One might nevertheless question whether the application of different methods of avoiding double taxation – national exemption and offsetting in the case of cross-border dividend distributions – might not constitute penalisation of outgoing dividends attributable to Italy. However, the Court has considered both methods of avoiding double taxation to be the same in its judgment in C-446/04 Test Claimants in the FII Group Litigation [2006] ECR I-11753, paragraph 53. This question is, however, the subject of a reference for a preliminary ruling that is still pending (Joined Cases C-436/08 and C-437/08 Hariboand Others, OJ 2009 C 19 p. 11).

28 – See, to this effect, Case C-157/07 Krankenheim Ruhesitz am Wannsee-Seniorenheimstatt [2008] ECR I-8061, paragraph 50.

29 – See, to this effect, Case C-336/96 Gilly [1998] ECR I-2793, paragraph 47. Hence, even the transfer of residence does not have to be tax neutral (see Case C-387/01 Weigel [2004] ECR I-4981, paragraph 55; Case C-365/02 Lindfors [2004] ECR I-7183, paragraph 34; and Case C-67/08 Block [2009] ECR I-0000, paragraph 35.

30 – See, on a corresponding problem, the Amurta Opinion (cited in footnote 2, point 87 et seq.).

31 – It refers in this connection to Case C-231/05 Oy AA [2007] ECR I-6373, paragraph 51.

32 – See in this respect, in particular, Case C-196/04 Cadbury Schweppes and Cadbury Schweppes Overseas [2006] ECR I-7995, paragraph 50, and Case C-451/05 ELISA [2007] ECR I-8251, paragraph 91.

33 – OJ 1977 L 336, p. 15, last amended by Council Directive 2006/98/EC of 20 November 2006 (OJ 2006 L 363, p. 129).

34 – Case C-521/07 Commission v Netherlands [2009] ECR I-0000, paragraph 33, which refers to Case C-452/01 Ospelt and Schlössle Weissenberg [2003] ECR I-9743, paragraph 32.

35 – See Commission v Netherlands (cited in footnote 33, paragraphs 38 and 39).

36 – See above, point 65.

37 – A (cited in footnote 13, paragraph 61).

38 – See in this respect A (cited in footnote 13, paragraphs 62 to 64).