OPINION OF ADVOCATE GENERAL TIZZANO delivered on 23 ...

OPINION OF MR TIZZANO — CASE C-58/01

OPINION OF ADVOCATE GENERAL TIZZANO

delivered on 23 January 2003 1

1. By order of 12 February 2001 the presiding Special Commissioner for the special purposes of the United Kingdom Income Tax Acts (the 'Special Commissioner') referred to the Court of Justice for a preliminary ruling a question on the interpretation of 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 ('Directive 90/435' or 'the Directive'). 2 Essentially, the Special Commissioner is asking the Court whether the 5% charge provided for by Article 10(3)(a) of the Convention between the United Kingdom of Great Britain and Northern Ireland and the Kingdom of the Netherlands for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income and Capital Gains concluded in the Hague on 7 November 1980 and subsequently amended by the Protocol adopted in London on 12 July 1983 ('the double taxation convention' or 'DTC') is compatible with the Directive.

I — Legislative background

A — Community legislation

2. Directive 90/435 sets up a common system of taxation applicable to parent companies and subsidiaries of different Member States, laying down minimum rules for the coordination of national tax systems. As is clear from the first three recitals of the preamble, this was in order to ensure the fiscal neutrality of cross-border distributions of dividends and thus to prevent cooperation between companies in different Member States from being disadvantaged in comparison with that between companies in the same Member State.

1 — Original language: Italian. 2 — OJ 1990 L 225, p. 6.

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OCÉ VAN DER GRINTEN

3. Article 1(1) of the Directive provides:

'Each Member State shall apply this Directive:

— to distributions of profits received by companies of that State which come from their subs id iar ies of o the r Member States,

— to distributions of profits by companies of that State to companies of other Member States of which they are subsidiaries.'

4. Article 5(1) of the Directive provides:

'Profits which a subsidiary distributed to its parent company shall, at least where the latter holds a minimum of 2 5 % of the capital of the subsidiary, be exempt from withholding tax.'

5. Article 7 of the Directive provides:

' 1 . The term "withholding tax" as used in this Directive shall not cover an advance payment or prepayment (précompte) of corporation tax to the Member State of the subsidiary which is made in connection with a distribution of profits to its parent company.

2. This Directive shall not affect the application of domestic or agreement-based provisions designed to eliminate or lessen economic double taxation of dividends, in particular provisions relating to the payment of tax credits to the recipients of dividends.'

B — The national legislation

6. The national legislative framework, which is fully explained in the order for reference, is rather complicated: it is sufficient here to sketch its main features.

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7. According to the order for reference, under the English legislation in force at the material time, and, in particular, under the Income and Corporation Taxes Act 1988 ('ICTA'), a company resident in the United Kingdom, or trading there through a branch or agency, was chargeable to corporation tax, a tax on profits charged on the basis of an accounting period of 12 months.

8. Again according to the order for reference, under that legislation, a company resident in the UIC which makes a distribution of dividends is liable to pay advance corporation tax ('ACT') on a quarterly basis on a provisional basis of assessment equal to the amount or value of the distribution made in the previous quarter. Advance tax paid in respect of distributions made in a given accounting period was set off against the company's tax debt for that accounting period and transferred to subsequent accounting periods if the tax was not due following the calculation of the tax debt on the final basis of assessment constituted by company profits.

9. Under that system, a company resident in the United Kingdom or an individual

resident there for tax purposes was entitled, on receipt of dividends from a British company, to a tax credit equal to the amount of the ACT paid by the company which distributed the dividends. The company in receipt of dividends set off that credit against its own corporation tax debt, while the dividends received by it were excluded from its basis of assessment for corporation tax. Where the recipient was an individual, he was liable to income tax on the dividend received, but could then set off the tax credit against income tax he owed.

10. Finally, it is clear from the order for reference that, under ICTA, a company which was not resident in the United Kingdom or which did not trade there through a branch or agency, was not chargeable to corporation tax. However, such a company was subject in the United Kingdom to a tax on UK source income, such as dividends paid to it by companies resident in the United Kingdom. Further, that company could not claim any tax credit if it received a dividend from a company resident in the United Kingdom, unless it was provided for by a double taxation convention.

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C — The double taxation convention

11. In the present case, the Convention of 7 November 1980 between the United Kingdom and the Netherlands comes into play in such circumstances.

12. Article 10(3)(a)(ii) of the DTC provides:

'Where a [company] resident of the Netherlands is entitled to a tax credit in respect of such a dividend under subparagraph (c) of this paragraph tax may also be charged in the United Kingdom, and according to the laws of the United Kingdom, on the aggregate of the amount or value of that dividend and the amount of that tax creditat a rate not exceeding 5%.'

13. Article 10(3)(c) of the DTC then provides:

'... a company which is a resident of the Netherlands and receives dividends from a company which is a resident of the United Kingdom shall,... provided it is the beneficial owner of the dividends, be entitled to a

tax credit equal to one half of the tax credit-to which an individual resident in the United Kingdom would have been entitled had he received those dividends, and to the payment of any excess of that tax credit over its liability to tax in the United Kingdom...'.

14. Finally, Article 22(2)(c) of the DTC provides:

'... the Netherlands shall allow a deduction from the Netherlands tax so computed for the items of income which according to [Article 10(3)] of this Convention may be taxed in the United Kingdom to the extent that these items are included in the basis referred to in sub-paragraph (a) of this paragraph. The amount of this deduction shall be equal to the tax paid in the United Kingdom on these items of income, but shall not exceed the amount of the reduction which would be allowed if the items of income so included were the sole items of income which are exempt from Netherlands tax under the provisions of Netherlands law for the avoidance of double taxation.'

II — Facts, procedure and questions referred

15. Océ van der Grinten NV ('Océ NV' or 'Océ'), is a company resident in the Nether-

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lands. It is the parent company inter alia of Océ UK Ltd ('Océ UK'), which is resident in the United Kingdom.

16. In 1992 and 1993 Océ UK paid dividends t o t a l l i n g a p p r o x i m a t e l y GBP 13 000 000 to its parent company and, at the same time, paid advance corporation tax to the UK Inland Revenue in respect of those dividends. By decision of the Inland Revenue Commiss ioners pu r suan t to Article 10(3)(c) of the DTC, the UK Inland Revenue granted Océ NV a tax credit of roughly GBP 2 174 000 on the basis of the advance corporation tax paid by Océ UK. By the same decision, a tax equal to 5 % of the aggregate of the dividend and that tax credit amounting to GBP 761 000 was then a p p l i e d t o O c é N V p u r s u a n t t o Article 10(3)(a) of the DTC. The repayment received by Océ NV pursuant to Article 10(3) of the DTC, equal to the tax credit less that abatement of 5 % , therefore amounted to roughly GBP 1 400 000.

17. As it considered that the tax imposed on it pursuant to Article 10(3)(a) of the DTC was contrary to Article 5(1) of Directive 90/435, as a withholding tax on the dividends paid by its subsidiary, Océ NV appealed against the decision of the

Inland Revenue Commissioners to the Special Commissioner. Taking the view that the case turned on the interpretation of certain provisions of the Directive, the Special Commissioner referred the following questions to the Court for a preliminary ruling:

1. In the circumstances set out in the order for reference, is the 5 % charge specified in subparagraph (a)(ii) of Article 10(3) of the UK/Netherlands Double Taxation Convention 1980 a withholding tax on profits which a subsidiary distributes to its parent company within Article 5(1) of Directive 90/435?

2. If the 5 % charge is such a withholding tax is its effect preserved as a consequence of Article 7(2) of the Directive?

3. If the 5 % charge is preserved only as a consequence of Article 7(2) of the Directive, is Article 7(2) invalid for want of reasoning or failure to consult the ESC and the European Parliament, with the result that it does not have the effect of preserving the right of the United Kingdom to charge the 5 % tax?

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18. In addition to the parties to the main proceedings, the United Kingdom and Italian Governments, the Commission and the Council intervened in these proceedings before the Court of Justice.

I I I — The questions referred

A — The first question

19. As regards the first question, I consider that the nature of the 5% charge applied under Article 10(3)(a) of the DTC in so far as it is applied to dividends and its nature in so far as it is applied to the tax credit must be defined separately.

1. The 5% charge on dividends

20. I must say at the outset that, in so far as it is applied to the dividend, the charge in question, in my view, constitutes a with

holding tax within the meaning of the Directive. It seems to me, as it does to all the interveners, that that classification is the only one which is consistent with the case-law of the Court.

21. In the past, when called upon to interpret Article 5(1) of the Directive, the Court has held that a 'withholding tax' within the meaning of the directive is any tax on income levied in the State in which dividends are paid and 'for which the chargeable event is the payment of dividends or of any other income from shares' and if 'the taxable amount is the income from the shares and that the taxable person is the holder of the shares' 3 irrespective of its classification under national law. 4

22. The term 'withholding tax' under the Directive thus covers all the taxes which are directly applied to the dividend in the country in which it is received, reducing its value for the holder of the shares. It must therefore be held that the prohibition of withholding tax under Article 5(1) also covers the case of a tax such as that at issue, in so far as it is applied to the dividends

3 — Case C-375/98 Epson Europe [2000] ECR I-4243, paragraph 23; in similar terms, Case C-294/99 Athinaïki [2001] ECR I-6797, paragraphs 28 and 29.

4 — Athinaïki, cited above, paragraph 27.

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received by the Dutch parent company, reducing the income which that company derives from its holding in the property of the subsidiary established in the United Kingdom.

23. The above analysis is, moreover, fully consistent with the objectives of the directive, in general, and of the prohibition under Article 5(1), in particular. As we know, and as is clear from the first three recitals in its preamble, the directive pursues the objective of fiscal neutrality in the Member States as regards relations between parent companies and subsidiaries in different Member States.

24. As the Court made clear in its judgment in Athinaïki,5 withholding tax is essentially a neutral fiscal instrument if the parent company is established in the State in which the subsidiary is established, since the tax authorities take account, on taxation of the profits of the parent company, of the tax already withheld. However, withholding tax gives rise to 'economic' double taxation where the company in receipt of the reduced dividend is resident in a different State, because in that other

State, if there is no double taxation convention, no account is taken, on taxation of the profits of the parent company, of the tax already withheld in the State in which the subsidiary is resident, so that the same profits are ultimately taxed twice.

25. I therefore conclude that, in so far as it is applied to dividends, the 5% charge under Article 10(3)(a) of the DTC is a withholding tax within the meaning of Article 5(1) of the Directive.

2. The 5% charge on the tax credit

26. However, I take the view that, in so far as it is applied to the income tax credit granted by the UK Inland Revenue to the Dutch parent company, that charge does not constitute a withholding tax.

27. The opposite view taken by Océ is based on the argument that a tax credit granted on the distribution of dividends is a capital gain absolutely comparable to a 'profit' derived from a shareholding in a 5 — Athinaïki, cited above, paragraph 7.

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company and its taxation is therefore prohibited pursuant to Article 5(1) of the Directive. The case-law of the Court has made clear that all types of income and earnings from shares are 'profits distributed by a company' within the meaning of that provision.6 That concept should also include a tax benefit such as that at issue. Moreover, a full definition of company profit, which also includes the tax credit as a monetary benefit, is set out in Article 10 of the Model Convention on the taxation of income and capital of the Organisation for Economic Cooperation and Development of 1977 (on which the DTC was based), in the official commentary on which it is stated that the term dividend may include not only distributions of profits decided by annual general meetings of shareholders, but also other benefits in money or money's worth.

28. It seems to me, however, that that interpretation does not reflect the logic and the rationale of the directive in question and its Article 5(1) in particular.

29. The purpose of that provision, as I pointed out above, is the elimination or

lessening of economic double taxation of profits distributed by a subsidiary company to a parent company, in so far as it adversely affects the establishment of groups of cross-border companies within the Community. We must therefore ask ourselves whether in the case under consideration, in the light of the criteria set out by the Court in Epson, the taxation of the tax credit in the hands of the parent company constitutes a tax on a profit distributed by the subsidiary in the State in which it is resident (and thus a withholding tax), which gives rise to economic double taxation on subsequent taxation of the profits of the parent company in its State of residence.

30. Now, in my view, that is not the case, for two reasons. First, the tax credit, given its characteristics and its function, cannot be considered to be a profit distributed by the subsidiary company; second, the partial reduction of the amount of that credit as a result of the 5% charge levied on it, can in no way lead to economic double taxation of profits produced by the subsidiary company and received by the parent company.

31. As regards the first point, I must point out that, far from representing a gain from its holding in the capital of the company, the tax credit which the UK Inland Revenue grants to the parent company in receipt of the dividend on the basis of the payment of ACT by the subsidiary represents a monetary bonus falling within the English system

6 — According to the appellant in the main proceedings, that conclusion is essentially upheld by the Court in its judgment in Epson Europe, cited above, paragraph 23, and by the Opinion of Advocate General Cosmas in that case, point 48.

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of setting off tax on company profits; that is to say, it essentially constitutes a clearing transaction between the taxpayer and the Revenue, which, in the circumstances covered by the DTC, takes the form of a monetary bonus granted by the UK Inland Revenue to the Dutch parent company, in order to relieve the tax burden to which receipt of the dividend would give rise for that company in the form of income tax in the Netherlands.

32. That being so, it must be acknowledged that that tax bonus is not a 'profit from shares' of the subsidiary but a fiscal instrument which does not distribute any 'new' income to the holder of those shares: its effect is solely to protect, to a certain extent, the income derived from a holding in the capital of the company which issued the shares from the negative effects of taxation.

33. I now turn to the second point, that is to say the assessment of the effects of taxation of the tax bonus. To establish whether such effects are inconsistent with the prohibition on withholding tax under the Directive we must bear in mind first that the prohibition is intended to prevent the dividend from being charged to tax in the State in which it is paid, given that it will serve to increase the tax debt of the recipient in the State in which it is resident (see above, point 24). In other words, the function of the prohibition is to ensure the

fiscal neutrality of the distribution of dividends in cross-border situations.

34. The taxation in the United Kingdom of the bonus paid by the UK Inland Revenue to the parent company does not in any way compromise the fiscal neutrality of the distribution of dividends, given that it does not affect the distribution of dividends of the subsidiary and does not reduce their value in the hands of the person to whom they are paid. This is particularly clear if we consider that, through recognition of the tax credit, the English tax system pursues an objective of fiscal neutrality which goes further and is more ambitious than that pursued by Article 5(1) of the Directive, since it makes it possible to limit, at the level of groups of companies, the burden of taxation on the income for the subsidiary's accounting year which is the basis for the distribution of the dividend. 7

35. It follows that the charging to tax of the tax credit does not entail economic double taxation and, therefore, is not inconsistent with the prohibition on withholding tax laid down by the Directive.

36. That conclusion is confirmed, moreover, by the consideration that, in the

7 — Note that, in the present case, in respect of an ACT payment of approximately GBP 4 348 000 which Océ UK paid to the UK Inland Revenue, the Revenue granted to Océ NV a tax credit of approximately GBP 1 400 000, with the contested 5% charge deducted. The group's tax burden resulting from British corporation tax was thus reduced by approximately one third.

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O C É V A N DER GRINTEN

scheme of the double taxation convention, the 5 % charge on the tax credit, provided for by Article 10(3)(a) of the DTC, has its counterpart in the obligation of the Netherlands tax authorities to allow its deduction from the tax debt of the parent company pursuant to Article 22(2)(c) of the DTC. Essentially, therefore, the 5 % charge on the tax credit does not amount to a genuine reduction in the tax bonus but rather to the redistribution of the disbursement of part of it between the British and Netherlands tax authorities.

37. If that is so, it seems to me that the taxation of that tax credit cannot be considered to be a withholding tax on profits from a shareholding in a company, but a mere method — of baroque complexity, it must be said — of calculating the tax credit itself, that is to say, a benefit which, as 1 have said, is eminently intended to lessen economic double taxation, to a greater extent than the prohibition on withholding tax does.

38. In conclusion, I believe that the Court's answer to the first question should be that t h e 5 % c h a r g e p r o v i d e d for by Article 10(3)(a)(ii) of the DTC constitutes a withholding tax on profits distributed by a subsidiary to a parent company within the meaning of Article 5(1) of Directive 90/435, in so far as it is applied to dividends, whereas it does not constitute such a tax in so far as it is applied to the tax credit.

B — The second question

39. The positions of the parties differ on the second question. On the one hand Océ a r g u e s t h a t t h e 5 % c h a r g e u n d e r Article 10(3)(a) of the DTC cannot be justified, even by Article 7(2) of the Directive. On the other hand, the United Kingdom, Italy and the Commission consider that the charge, although it constitutes a withholding tax generally contrary to Article 5(1), is none the less compatible with the purpose of the Directive and is justified under Article 7(2) as an integral part of an agreement-based set of rules which is intended to lessen economic double taxation.

40. In support of its argument Ocė first contends that the charge in question does not meet the requirements of any of the derogations provided for by other provisions of the directive, nor, so far as m a t e r i a l , can it be justified u n d e r Article 7(2). As Advocate General Alber pointed out in his Opinion in Case C-294/99 (cited above, point 41), that article does not seek to preserve all provisions of double taxation agreements, but

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only those provisions actually intended to avoid double taxation. In the present case, however, the 5% charge, imposing an additional withholding tax on the amount of the dividend and the tax credit, is calculated to impose or increase double taxation.

41. Moreover, Océ goes on to argue, even if the effect of that charge were neutral, in so far it is possible to deduct payment of that British tax from the income tax owed to the Netherlands tax authorities pursuant to Article 22 of the DTC, we could not then say that Article 10(3)(a) of the DTC in itself pursues the objective of preventing double taxation. Thus, the provision cannot be justified under Article 7 of the Directive from that point of view either.

42. Nor would it be valid to maintain that Article 10(3) of the DTC considered as a whole contains 'provisions relating to the payment of tax credits to the recipients of dividends ' within the meaning of Article 7(2) of the Directive. This, the appellant in the main proceedings submits, is because that article is not intended to preserve the application of every provision of an agreement relating to tax credits but only of those which are intended at the same time to prevent double taxation. Such

a reading, Océ concludes, would, moreover, be consistent with the requirement to interpret Article 7 strictly which emerges from the case-law of the Court. 8

43. As I have said, the United Kingdom, the Commission and the Italian Government take the opposite view. In their opinion, the levying of a withholding tax pursuant to Article 10(3)(a)(ii) of the DTC falls within the derogation provided for by Article 7(2) of the Directive, essentially because it must not be considered in isolation but as an essential part of a system which, as a whole, pursues the same objective as the Directive.

44. For my part, I must point out here and now that, of the two interpretations of Article 7 of the Directive, the latter appears to me far preferable, for reasons which I will now explain.

45. First of all, as the United Kingdom observes, with the support on this point of the Commission, Article 10(3) of the DTC

8 — Joined Cases C-283/94, C-291/94 and C-292/94 Denkavit [1996] ECR I-5063, paragraphs 27 and 31.

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must be read as a whole without singling out individual provisions.

46. In particular, in my view one must consider together the wording of subparagraph (c), which provides for the tax credit vis-à-vis the UK Inland Revenue, and that of subparagraph (a), which lays down its amount, reducing it by 5%. Only in that way can we fully understand a system, such as that established by the convention, which grants a tax credit to a foreign company which otherwise would have no right to it on the basis of the common rules. A system, therefore, which, as is fully consistent with the objectives pursued by the Directive at Community level, has precisely the aim of lessening the effects of economic double taxation resulting from the coexistence, in the two contracting States, of different tax systems.

47. Moreover, Article 10(3) of the DTC itself must in turn not be read in isolation but in the light of Article 22(2)(c) of the convention. As we saw above (points 14 and 36), that provision requires the Netherlands tax authorities to grant a tax credit, in favour of the British parent company, corresponding to that paid pursuant to Article 10(3)(a) of the DTC. Therefore, and

to the extent that it is imposed on dividends, the charge provided for by Article 10(3)(a) of die DTC is neutral from the taxation point of view and does not lead to economic double taxation, as is consistent, once again, with the objective of the Directive.

48. Wc can also assume, disregarding the provisions of Article 22 of the DTC, that the lessening of double taxation would be more marked if the 5% charge were not applied. However, even if we wanted to pursue that argument, we would have to acknowledge, as the United Kingdom and the Italian Government point out, that the Directive does not require either complete abolition of double taxation nor its reduction to an agreed minimum level, so that the limitation of the positive effects of the tax credit cannot be said to be contrary to the Directive.

49. I would add, finally, that an interpretation like that upheld by Océ would ultimately deprive Article 7(2) of all significance. There would be no sense in 'preserving' the provisions of conventions which seek to reduce double taxation only if they are fully consistent with the relevant provisions of the Directive: on that interpretation, Article 7(2) would be a wholly superfluous provision.

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50. In conclusion, and for the reasons I have set out above, I believe that the Court's answer to the second question referred should be that the 5 % charge provided for by Article 10(3)(a)(ii) of the DTC can be considered consistent with Directive 90/435 by virtue of Article 7(2) of that directive, even where it constitutes a withholding tax.

C — The third question

5 1 . By its third question, which is, of course, put in the alternative, the referring court asks whether Directive 90/435 is vitiated by breach of essential procedural rules and therefore invalid, in so far as, under Article 7(2), it may exempt national taxes which are in principle unlawful from the prohibition on withholding tax in its Article 5(1).

52. All the parties propose that that question should be answered in the negative, apart from Océ, which maintains that the Directive must be considered invalid, in that respect, for want of reasoning and failure to consult the Economic and Social Committee and the European Parliament.

53. According to Océ, the Directive does not give adequate reasons in relation to Article 7(2), since none of the recitals in the preamble refers to such a derogation, whereas such reference is made in respect of other derogating provisions in the directive.

54. On its second point, Océ argues that, in its original formulation, Article 7 of the Directive contained only provisions relating to the consolidation of profits and that in the final version of the Article those provisions were deleted. The opinion of the Parliament and the Economic and Social Committee was obtained only on the original and not on the final version. That represents a breach of essential procedural rules because the differences between the two versions were not negligible and therefore called for a second opinion from the two bodies.

55. I must say at the outset that I do not consider that the Directive is vitiated by breach of essential procedural rules, neither as regards the reasons stated, nor as regards the consultation of the European Parliament and the Economic and Social Committee.

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56. As to the first aspect, I would point out, in general terms, that the Court has consistently held that the scope of the obligation to state reasons depends on the nature of the measure in question and that, in the case of measures of general application, the statement of reasons may be confined to indicating the general situation which led to the adoption of the measure, on the one hand, and the general objectives which it is intended to achieve, on the other. If the contested measure clearly discloses the essential objective pursued by the institution, it would be excessive to require a specific statement of reasons for the various technical choices made. 9

57. In the present case, it seems to me that the United Kingdom, the Commission and the Council are right to point out that the statement of reasons in the Directive clearly indicates its general objective, that is to say, fiscal neutrality of cross-border distribution of profits, and that that is sufficient to cover the clause preserving the provisions of the convention which pursue the same objective, that is to say, Article 7(2) of the Directive.

58. As regards the failure to consult the European Parliament and the Economic and Social Committee, it is true that,

according to settled case-law of the Court, 'the requirement to consult the European Parliament in the legislative procedure, in the cases provided for by the Treaty, means that it must be consulted again whenever the text finally adopted, taken as a whole, differs in essence from the text on which the Parliament has already been consulted.' 10

59. Like the Commission, the Council and the United Kingdom Government, however, I, too, think that the effect of the introduction of Article 7(2) was not to change the 'essence' of the Directive, but only to make a technical adjustment to its structure, allowing specific national rules to be preserved provided they are consistent with the objective of the Directive. Thus, in the light, too, of the answers I proposed to the previous questions, it seems to me that I can say that such an amendment did not require a second opinion of the Parliament and the Economic and Social Committee.

60. In conclusion, I consider that the examination of the third question did not disclose formal and procedural defects liable to call into question the validity of Article 7(2) of the Directive.

9 — Case C-150/94 United Kingdom v Council [1998] ECR I-7235, paragraphs 25 and 26, and Case C-168/98 Luxembourg v Parliament and Council [2000] ECR I-9131, paragraph 62.

10 — Inter alia. Case C-392/95 Parliament v Council [1997] ECR I-3213, paragraph 15, and Case C-408/95 Eurotunnel 11997] ECR I-6315, paragraph 46.

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IV — Conclusion

61. In the light of the foregoing considerations, I propose that the Court should answer the three questions referred by the Special Commissioner as follows:

(1) The 5% charge provided for by Article 10(3)(a)(ii) of the Convention between the United Kingdom of Great Britain and Northern Ireland and the Kingdom of the Netherlands for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income and Capital Gains concluded in the Hague on 7 November 1980 constitutes a withholding tax on profits distributed by a subsidiary to a parent company within the meaning of Article 5(1) of Directive 90/435 in so far as it is applied to dividends, whereas it does not constitute such a tax in so far as it is applied to the tax credit.

(2) That charge can be considered consistent with Directive 90/435 by virtue of Article 7(2) of that directive, even where it constitutes a withholding tax.

(3) Examination of the third question did not disclose formal and procedural defects liable to call into question the validity of Article 7(2) of the Directive.

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