28Third, the referring court seeks to ascertain whether point 2 of the operative part of the judgment in Test Claimants in the FII Group Litigation is limited to the situation in which the resident company receiving dividends from a non-resident company paid the ACT itself or whether point 2 of the operative part also applies in the situation in which that resident company made a group income election. Under those arrangements, the ACT is paid by a resident company higher up the corporate structure. The referring court also asks whether, in the latter situation, which is excluded by the Court in paragraph 10 of the judgment in Test Claimants in the FII Group Litigation, an infringement of European Union law should be found so that, by virtue of the principles laid down by the Court in Case 199/82 San Giorgio [1983] ECR 3595, a right to repayment exists in favour of the company higher up the corporate structure which actually paid the ACT.
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