ECJ rules on compatibility of Belgian participation exemption regime with EC parent-subsidiary directive
Faculty of Law
EC tax review. - Deventer, 1992, currens
, p. 146-156
University of Antwerp
This contribution deals with two judgments the European Court of Justice (ECJ) recently has issued regarding the conformity of the Belgian participation exemption with the EC Parent-Subsidiary Directive. The case Belgian State v. Les Vergers du Vieux Tauves SA of 22 December 2008 clarifies the personal scope of application of the Directive. A usufructuary cannot be deemed to have a holding in the capital since from a civil law perspective it derives its right to receive profit distribution from its usufructuary rights and not from a holding in the capital. In the Belgische Staat v. NV Cobelfret case of 12 February 2009, the ECJ again rules that a Member State cannot apply unilateral conditions not provided for in the Directive. This case concerns the condition under Belgian domestic law according to which a parent company must have a positive taxable basis in order to benefit from the participation exemption.