Witholding tax: EU Court of Justice v. French Supreme Court

25 July 2018

In his conclusions issued on 25 July 2018, the Advocate General Melchior WHATELET considers that a jurisdictional infringement has been committed by the French Council of State ruling on behalf of the French Republic, by:

  • refusing to take into account the taxes imposed upon the sub-subsidiaries established in an Member State other than France, whereas the mechanism applicable to sub-subsidiaries established in France authorized said sub-subsidiaries to pay tax-free dividends to the intermediary corporation, thereby perpetuating the discrimination previously noted by the Court in its ruling dated 15 September 2011;
  • refraining from petitioning the Court for a preliminary ruling on the matter, in application of Article 267 TFEU, thus preventing said Court from carrying out its fundamental mission to ensure that the law is upheld in the interpretation and implementation of treaties, without there being any room for enforcing CILFIT case law in the case at hand.


The ruling shall be handed down in a few weeks (C416-17). Should the Court decide to follow its Advocate General, this would be the first time in the history of the European Union that a jurisdictional infringement committed by the supreme jurisdiction of a Member State will be censured.


Voir les conclusions


François-Henri BRIARD