The French Constitutional Council (Conseil constitutionnel) sanctioned the phenomenon of reverse discrimination

Conseil constitutionnel, 03/02/2016, décision 2015-520 QPC, Société Metro Holding France SA venant aux droits de la société CRFP Cash [Application du régime fiscal des sociétés mères aux produits de titres auxquels ne sont pas attachés des droits de vote] – Non conformité totale

In the present case the French Constitutional Council (Conseil constitutionnel) was requested to examine the constitutionality of Article 145-6-b ter of the French General Tax Code, which taxed the distribution of shares between parent and subsidiary companies.

X, a French parent company, received shares from its French subsidiary Y. The operation, carried out in a purely internal situation, was taxed and X contested the imposition. X claimed that the French legislation established reverse discrimination given the fact that the same operation carried out in a cross-border situation involving different Member States was exonerated under the Directive 90/435/EEC.

The case was brought before the Council of State (Conseil d’Etat) which referred it to the Constitutional Council (Conseil constitutionnel).

The Constitutional Council underlined that the EU-transfer of shares, invoked by X, was regulated by the Directive 90/435/CE and it should be subject to a conventionality review, for which the Constitutional Council had no jurisdiction.

Concerning shares transferred by a subsidiary situated in France, as it was the case in the main proceedings, or by a subsidiary situated in a third non-EU country, the Constitutional Council underlined that these operations remained outside the scope of the Directive 90/435/CE and, therefore, the French legislator was competent to legislate within the limits of the Constitutional requirements.

In the present case, the Constitutional Council found that a French parent company, receiving shares from a subsidiary situated in France or in third non-EU countries, was in the same situation as a parent company receiving shares from its EU subsidiary. Therefore, Article 145-6-b ter established a difference of treatment on the grounds of the geographical situation of the subsidiary, in infringement of constitutional principle of non-discrimination. For this reason, the Constitutional Council declared the contested disposition unconstitutional.

 The full text is available on EuroCases

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