On November 28, 2016 the Finanzgericht Köln lodged a request for a preliminary ruling with the Court of Justice of the European Union (CJEU) in the Case Juhler Holding A/S versus Bundeszentralamt für Steuern (Case C-613/16). The questions referred for a preliminary ruling have been published in the Official Journal of the European Union of April 3, 2017.
The questions referred for a preliminary ruling by the Finanzgericht Köln read as follows:
“1. Does Article 43 EC, in conjunction with Article 48 EC, (now Article 49 TFEU, in conjunction with Article 54 TFEU) preclude national tax legislation, such as that at issue in the main proceedings, which denies relief from capital gains tax on distributions of profits made to a non-resident parent company which, within a group of undertakings actively trading in the Member State in which the parent company is established, is permanently spun off as a holding company,
to the extent that persons have holdings in it who would not be entitled to the refund or exemption if they earned the income directly, and
(1) there are no economic or other substantial reasons for the involvement of the non-resident parent company, or
(2) the non-resident parent company does not earn more than 10 % of its entire gross income for the financial year in question from its own economic activity (there being no such activity, inter alia, if the foreign company earns its gross income from the management of assets), or
(3) the non-resident parent company does not take part in general economic commerce with a business establishment suitably equipped for its business purpose, whereas resident holding companies are granted relief from capital gains tax without regard to the aforementioned requirements?
2. Does Article 5(1), in conjunction with Article 1(2), of Directive 90/435/EEC preclude national tax legislation, such as that at issue in the main proceedings, which denies relief from capital gains tax on distributions of profits made to a non-resident parent company which, within a group of undertakings actively trading in the Member State in which the parent company is established, is permanently spun off as a holding company,
to the extent that persons have holdings in it who would not be entitled to the refund or exemption if they earned the income directly, and
(1) there are no economic or other substantial reasons for the involvement of the non-resident parent company, or
(2) the non-resident parent company does not earn more than 10 % of its entire gross income for the financial year in question from its own economic activity (there being no such activity, inter alia, if the foreign company earns its gross income from the management of assets), or
(3) the non-resident parent company does not take part in general economic commerce with a business establishment suitably equipped for its business purpose, whereas resident holding companies are granted relief from capital gains tax without regard to the aforementioned requirements?”
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