Judgment_paragraph 34 · Deister Holding AG and Juhler Holding A/S v Bundeszentralamt für Steuern (C-504/16, C-613/16)

34In those circumstances, the Finanzgericht Köln (Finance Court, Cologne) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling, in essence identical in both cases:(1) Does Article 49 in conjunction with Article 54 TFEU preclude national tax legislation such as that at issue in the main proceedings which denies relief from tax on income from capital tax on distributions of profits made to a non-resident parent company whose sole shareholder is resident within the country [Case C‑504/16] or to a non-resident parent company which, within an actively trading group resident in the Member State in which the parent company is resident, is permanently spun off as a holding company [Case C‑613/16], 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– there are no economic or other substantial reasons for the involvement of the non-resident parent company, or– 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– the non-resident parent company does not take part in general economic commerce with a business establishment suitably equipped for its business purpose,whereas parent holding companies are granted relief from tax on income from capital 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 tax on income from capital tax on distributions of profits made to a non-resident parent company whose sole shareholder is resident within the country [Case C‑504/16] or to a non-resident parent company which, within an actively trading group resident in the Member State in which the parent company is resident, is permanently spun off as a holding company [Case C‑613/13]), to the extent that persons have holdings in it who would not be entitled to the refund or exemption if they directly earned the income, and– there are no economic or other substantial reasons for the involvement of the non-resident parent company, or– 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– 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 parent companies are granted relief from tax on income from capital tax without regard to the aforementioned requirements?’