HTML PUBLIC "-//W3C//DTD HTML 4.01 Transitional//EN"L 345/8
EN
Official Journal of the European Union
29.12.2011
DIRECTIVES
COUNCIL DIRECTIVE 2011/96/EU
of 30 November 2011
on the common system of taxation applicable in the case of parent companies and subsidiaries of
different Member States
(recast)
THE COUNCIL OF THE EUROPEAN UNION,
therein are adopted by the Council acting in accordance
with the procedure provided for in the Treaty. It is
furthermore appropriate to update the Annexes to that
Directive.
Having regard to the Treaty on the Functioning of the European
Union, and in particular Article 115 thereof,
(3) The
objective
of
this
Directive
is
to
exempt
dividends
and
Having regard to the proposal from the European Commission,
other profit distributions paid by subsidiary companies to
their parent companies from withholding taxes and to
eliminate double taxation of such income at the level of
the parent company.
After transmission of the draft legislative act to the national
parliaments,
(4)
The grouping together of companies of different Member
Having regard to the opinion of the European Parliament ( 1 ),
States may be necessary in order to create within the
Union conditions analogous to those of an internal
market and in order thus to ensure the effective func
tioning of such an internal market. Such operations
Having regard to the opinion of the European Economic and
should not to be hampered by restrictions, disadvantages
Social Committee ( 2 ),
or distortions arising in particular from the tax
provisions of the Member States. It is therefore necessary,
with respect to such grouping together of companies of
Acting in accordance with a special legislative procedure,
different Member States, to provide for tax rules which
are neutral from the point of view of competition, in
order to allow enterprises to adapt to the requirements
of the internal market, to increase their productivity and
Whereas:
to improve their competitive strength at the international
level.
(1) 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
(5) Such
grouping
together
may
result
in
the
formation
of
States (
groups of parent companies and subsidiaries.

3 ) has been substantially amended several times ( 4 ).
Since further amendments are to be made, it should be
recast in the interests of clarity.
(6) Before
the
entry
into
force
of
Directive
90/435/EEC,
the
tax provisions governing the relations between parent
(2)
In the light of the judgment of the Court of Justice of
companies and subsidiaries of different Member States
6 May 2008 in Case C-133/06 ( 5 ), it is considered
varied appreciably from one Member State to another
necessary to redraft the wording of the second
and were generally less advantageous than those
subparagraph of Article 4(3) of Directive 90/435/EEC,
applicable to parent companies and subsidiaries of the
for the purpose of clarifying that the rules referred to
same Member State. Cooperation between companies of
different Member States was thereby disadvantaged in
( 1 ) Opinion delivered on 4 May 2011 (not yet published in the Official
comparison with cooperation between companies of
Journal).
the same Member State. It was necessary to eliminate
( 2 ) OJ C 107, 6.4.2011, p. 73.
that disadvantage by the introduction of a common
( 3 ) OJ L 225, 20.8.1990, p. 6.
( 4 ) See Annex II, Part A.
system in order to facilitate the grouping together of
( 5 ) [2008] ECR I-03189.
companies at Union level.

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29.12.2011 Official
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(7) Where
a
parent
company
by
virtue
of
its
association
with (b) to distributions of profits by companies of that Member
its subsidiary receives distributed profits, the Member
State to companies of other Member States of which they
State of the parent company must either refrain from
are subsidiaries;
taxing such profits, or tax such profits while authorising
the parent company to deduct from the amount of tax
due that fraction of the corporation tax paid by the
subsidiary which relates to those profits.
(c) to distributions of profits received by permanent estab
lishments situated in that Member State of companies of
other Member States which come from their subsidiaries
(8) It
is
furthermore
necessary,
in
order
to
ensure
fiscal
of a Member State other than that where the permanent
neutrality, that the profits which a subsidiary distributes
establishment is situated;
to its parent company be exempt from withholding tax.
(d) to distributions of profits by companies of that Member
(9) The
payment
of
profit
distributions
to,
and
their
receipt
State to permanent establishments situated in another
by, a permanent establishment of a parent company
Member State of companies of the same Member State of
should give rise to the same treatment as that applying
which they are subsidiaries.
between a subsidiary and its parent. This should include
the situation where a parent company and its subsidiary
are in the same Member State and the permanent estab
lishment is in another Member State. On the other hand,
it appears that situations where the permanent estab
2. This Directive shall not preclude the application of
lishment and the subsidiary are situated in the same
domestic or agreement-based provisions required for the
Member State can, without prejudice to the application
prevention of fraud or abuse.
of the Treaty principles, be dealt with on the basis of
national legislation by the Member State concerned.
Article 2
(10) In
relation
to
the
treatment
of
permanent
establishments
For the purposes of this Directive the following definitions shall
Member States may need to determine the conditions
apply:
and legal instruments in order to protect the national
tax revenue and fend off circumvention of national
laws, in accordance with the Treaty principles and
taking into account internationally accepted tax rules.
(a) ‘company of a Member State’ means any company which:
(11) When corporate
groups are organised in chains of
companies and profits are distributed through the chain
(i) takes one of the forms listed in Annex I, Part A;
of subsidiaries to the parent company, double taxation
should be eliminated either by exemption or tax credit.
In the case of tax credit the parent company should be
able to deduct any tax paid by any of the subsidiaries in
(ii) according to the tax laws of a Member State is
the chain provided that the requirements set out in this
considered to be resident in that Member State for
Directive are met.
tax purposes and, under the terms of a double
taxation agreement concluded with a third State, is
not considered to be resident for tax purposes outside
(12) This
Directive
should
be
without
prejudice
to
the
obli
the Union;
gations of the Member States relating to the time limits
for transposition into national law of the Directives set
out in Part B of Annex II,
(iii) moreover, is subject to one of the taxes listed in Annex
I, Part B, without the possibility of an option or of
being exempt, or to any other tax which may be
HAS ADOPTED THIS DIRECTIVE:
substituted for any of those taxes;
Article 1
1. Each
Member
State
shall
apply
this
Directive:
(b) ‘permanent establishment’ means a fixed place of business
situated in a Member State through which the business of a
company of another Member State is wholly or partly
carried on in so far as the profits of that place of
(a) to distributions of profits received by companies of that
business are subject to tax in the Member State in which
Member State which come from their subsidiaries of other
it is situated by virtue of the relevant bilateral tax treaty or,
Member States;
in the absence of such a treaty, by virtue of national law.

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L 345/10
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Official Journal of the European Union
29.12.2011
Article 3
subsidiary, subject to the condition that at each tier a
company and its lower-tier subsidiary fall within the defi
1. For
the
purposes
of
applying
this
Directive:
nitions laid down in Article 2 and meet the requirements
provided for in Article 3, up to the limit of the amount of
the corresponding tax due.
(a) the status of parent company shall be attributed:
2. Nothing
in
this
Directive
shall
prevent
the
Member
State
(i) at least to a company of a Member State which fulfils
of the parent company from considering a subsidiary to be
the conditions set out in Article 2 and has a minimum
fiscally transparent on the basis of that Member State’s
holding of 10 % in the capital of a company of another
assessment of the legal characteristics of that subsidiary
Member State fulfilling the same conditions;
arising from the law under which it is constituted and
therefore from taxing the parent company on its share of the
profits of its subsidiary as and when those profits arise. In this
case the Member State of the parent company shall refrain from
(ii) under the same conditions, to a company of a Member
taxing the distributed profits of the subsidiary.
State which has a minimum holding of 10 % in the
capital of a company of the same Member State, held
in whole or in part by a permanent establishment of the
former company situated in another Member State;
When assessing the parent company’s share of the profits of its
subsidiary as they arise the Member State of the parent
company shall either exempt those profits or authorise the
(b) ‘subsidiary’ means that company the capital of which
parent company to deduct from the amount of tax due that
includes the holding referred to in point (a).
fraction of the corporation tax related to the parent company’s
share of profits and paid by its subsidiary and any lower-tier
subsidiary, subject to the condition that at each tier a company
and its lower-tier subsidiary fall within the definitions laid down
2. By
way
of
derogation
from
paragraph
1,
Member
States in Article 2 and meet the requirements provided for in
shall have the option of:
Article 3, up to the limit of the amount of the corresponding
tax due.
(a) replacing, by means of bilateral agreement, the criterion of a
holding in the capital by that of a holding of voting rights;
3. Each
Member
State
shall
retain
the
option
of
providing
that any charges relating to the holding and any losses resulting
from the distribution of the profits of the subsidiary may not be
deducted from the taxable profits of the parent company.
(b) not applying this Directive to companies of that Member
State, which do not maintain for an uninterrupted period of
at least 2 years holdings qualifying them as parent
companies, or to those of their companies in which a
company of another Member State does not maintain
Where the management costs relating to the holding in such a
such a holding for an uninterrupted period of at least 2
case are fixed as a flat rate, the fixed amount may not exceed
years.
5 % of the profits distributed by the subsidiary.
Article 4
4. Paragraphs 1 and 2 shall apply until the date of effective
1. Where
a
parent
company
or
its
permanent
establishment, entry into force of a common system of company taxation.
by virtue of the association of the parent company with its
subsidiary, receives distributed profits, the Member State of
the parent company and the Member State of its permanent
establishment shall, except when the subsidiary is liquidated,
5. The
Council,
acting
unanimously
in
accordance
with
a
either:
special legislative procedure and after consulting the European
Parliament and the Economic and Social Committee, shall, at
the appropriate time, adopt the rules to apply as from the date
of effective entry into force of a common system of company
(a) refrain from taxing such profits; or
taxation.
(b) tax such profits while authorising the parent company and
Article 5
the permanent establishment to deduct from the amount of
tax due that fraction of the corporation tax related to those
Profits which a subsidiary distributes to its parent company
profits and paid by the subsidiary and any lower-tier
shall be exempt from withholding tax.

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EN
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European
Union L
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Article 6
2. Member
States
shall
communicate
to
the
Commission
the
text of the main provisions of national law which they adopt in
The Member State of a parent company may not charge with
the field covered by this Directive together with a correlation
holding tax on the profits which such a company receives from
table between them and this Directive.
a subsidiary.
Article 9
Article 7
Directive 90/435/EEC, as amended by the acts listed in Annex
1. The
term
‘withholding
tax’
as
used
in
this
Directive
shall II, Part A, is repealed, without prejudice to the obligations of the
not cover an advance payment or prepayment (précompte) of
Member States relating to the time limits for transposition into
corporation tax to the Member State of the subsidiary which
national law of the Directives set out in Annex II, Part B.
is made in connection with a distribution of profits to its parent
company.
References to the repealed Directive shall be construed as
references to this Directive and shall be read in accordance
2. This Directive shall not affect the application of domestic
with the correlation table in Annex III.
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
Article 10
dividends.
This Directive shall enter into force on the 20th day following
its publication in the Official Journal of the European Union.
Article 8
1. Member
States
shall
bring
into
force
the
laws,
regulations,
Article 11
and administrative provisions necessary to comply with this
Directive as from 18 January 2012. They shall forthwith
This Directive is addressed to the Member States.
inform the Commission thereof.
Done at Brussels, 30 November 2011.
When Member States adopt these measures, they shall contain a
reference to this Directive or shall be accompanied by such
For the Council
reference on the occasion of their official publication. The
methods of making such reference shall be laid down by
The President
Member States.
J. VINCENT-ROSTOWSKI

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L 345/12
EN
Official Journal of the European Union
29.12.2011
ANNEX I
PART A
List of companies referred to in Article 2(a)(i)
(a) companies incorporated under Council Regulation (EC) No
2157/2001 of 8 October 2001 on the Statute for a
European company (SE) ( 1 ) and Council Directive 2001/86/EC of 8 October 2001 supplementing the Statute for a
European company with regard to the involvement of employees ( 2 ) and cooperative societies incorporated under
Council Regulation (EC) No 1435/2003 of 22 July 2003 on the Statute for a European Cooperative Society (SCE) ( 3 )
and Council Directive 2003/72/EC of 22 July 2003 supplementing the Statute for a European Cooperative Society
with regard to the involvement of employees ( 4 );
(b) companies under Belgian law known as ‘société anonyme’/‘naamloze vennootschap’, ‘société en commandite par
actions’/‘commanditaire vennootschap op aandelen’, ‘société privée à responsabilité limitée’/‘besloten vennootschap
met beperkte aansprakelijkheid’, ‘société coopérative à responsabilité limitée’/‘coperatieve vennootschap met
beperkte aansprakelijkheid’, ‘société coopérative à responsabilité illimitée’/‘coperatieve vennootschap met onbeperkte
aansprakelijkheid’, ‘société en nom collectif’/‘vennootschap onder firma’, ‘société en commandite simple’/‘gewone
commanditaire vennootschap’, public undertakings which have adopted one of the abovementioned legal forms,
and other companies constituted under Belgian law subject to Belgian corporate tax;
(c) companies
under
Bulgarian
law
known
as:
‘събирателно дружество’, ‘командитно дружество’, ‘дружество с ограничена
отговорност’, ‘акционерно дружество’, ‘командитно дружество с акции’, ‘неперсонифицирано дружество’, ‘кооперации’,
‘кооперативни съюзи’, ‘държавни предприятия’ constituted under Bulgarian law and carrying on commercial activities;
(d) companies under Czech law known as: ‘akciová spolenost’, ‘spolenost s ruením omezenm’;
(e) companies under Danish law known as ‘aktieselskab’ and ‘anpartsselskab’. Other companies subject to tax under the
Corporation Tax Act, in so far as their taxable income is calculated and taxed in accordance with the general tax
legislation rules applicable to ‘aktieselskaber’;
(f) companies under German law known as ‘Aktiengesellschaft’, ‘Kommanditgesellschaft auf Aktien’, ‘Gesellschaft mit
beschrnkter Haftung’, ‘Versicherungsverein auf Gegenseitigkeit’, ‘Erwerbs- und Wirtschaftsgenossenschaft’, ‘Betriebe
gewerblicher Art von juristischen Personen des ffentlichen Rechts’, and other companies constituted under German
law subject to German corporate tax;
(g) companies under Estonian law known as: ‘tisühing’, ‘usaldusühing’, ‘osaühing’, ‘aktsiaselts’, ‘tulundusühistu’;
(h) companies incorporated or existing under Irish law, bodies registered under the Industrial and Provident Societies
Act, building societies incorporated under the Building Societies Acts and trustee savings banks within the meaning
of the Trustee Savings Banks Act, 1989;
(i) companies
under
Greek
law
known
as
‘αννυμη εταιρεα’,‘εταιρεα περιορισμνη ευθνη (Ε.Π.Ε.)’and other companies
constituted under Greek law subject to Greek corporate tax;
(j) companies under Spanish law known as: ‘sociedad anónima’, ‘sociedad comanditaria por acciones’, ‘sociedad de
responsabilidad limitada’, public law bodies which operate under private law. Other entities constituted under
Spanish law subject to Spanish corporate tax (‘Impuesto sobre Sociedades’);
(k) companies under French law known as ‘société anonyme’, ‘société en commandite par actions’, ‘société à respons
abilité limitée’, ‘sociétés par actions simplifiées’, ‘sociétés d’assurances mutuelles’, ‘caisses d’épargne et de prévoyance’,
‘sociétés civiles’ which are automatically subject to corporation tax, ‘coopératives’, ‘unions de coopératives’, industrial
and commercial public establishments and undertakings, and other companies constituted under French law subject
to French corporate tax;
(l) companies under Italian law known as ‘società per azioni’, ‘società in accomandita per azioni’, ‘società a respons
abilità limitata’, ‘società cooperative’, ‘società di mutua assicurazione’, and private and public entities whose activity is
wholly or principally commercial;
( 1 ) OJ L 294, 10.11.2001, p. 1.
( 2 ) OJ L 294, 10.11.2001, p. 22.
( 3 ) OJ L 207, 18.8.2003, p. 1.
( 4 ) OJ L 207, 18.8.2003, p. 25.

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(m) under Cypriot law: ‘εταιρεε’ as defined in the Income Tax laws;
(n) companies under Latvian law known as: ‘akciju sabiedrība’, ‘sabiedrība ar ierobeotu atbildību’;
(o) companies incorporated under the law of Lithuania;
(p) companies under Luxembourgish law known as ‘société anonyme’, ‘société en commandite par actions’, ‘société à
responsabilité limitée’, ‘société coopérative’, ‘société coopérative organisée comme une société anonyme’, ‘association
d’assurances mutuelles’, ‘association d’épargne-pension’, ‘entreprise de nature commerciale, industrielle ou minière de
l’Etat, des communes, des syndicats de communes, des établissements publics et des autres personnes morales de
droit public’, and other companies constituted under Luxembourg law subject to Luxembourg corporate tax;
(q) companies under Hungarian law known as: ‘kzkereseti társaság’, ‘betéti társaság’, ‘kzs vállalat’, ‘korlátolt
felelsség társaság’, ‘részvénytársaság’, ‘egyesülés’, ‘szvetkezet’;
(r) companies under Maltese law known as: ‘Kumpaniji ta’ Responsabilita’ Limitata’, ‘Sojetajiet en commandite li l-
kapital taghom maqsum f’azzjonijiet’;
(s) companies
under
Dutch
law
known
as
‘naamloze
vennootschap’,
‘besloten
vennootschap
met
beperkte
aansprake
lijkheid’, ‘open commanditaire vennootschap’, ‘coperatie’, ‘onderlinge waarborgmaatschappij’, ‘fonds voor gemene
rekening’, ‘vereniging op coperatieve grondslag’, ‘vereniging welke op onderlinge grondslag als verzekeraar of
kredietinstelling optreedt’, and other companies constituted under Dutch law subject to Dutch corporate tax;
(t) companies under Austrian law known as ‘Aktiengesellschaft’, ‘Gesellschaft mit beschrnkter Haftung’, ‘Versicherungs
vereine auf Gegenseitigkeit’, ‘Erwerbs- und Wirtschaftsgenossenschaften’, ‘Betriebe gewerblicher Art von Krper
schaften des ffentlichen Rechts’, ‘Sparkassen’, and other companies constituted under Austrian law subject to
Austrian corporate tax;
(u) companies under Polish law known as: ‘spóka akcyjna’, ‘spóka z ograniczon odpowiedzialnoci’;
(v) commercial companies or civil law companies having a commercial form and cooperatives and public undertakings
incorporated in accordance with Portuguese law;
(w) companies under Romanian law known as: ‘societi pe aciuni’, ‘societi n comandit pe aciuni’, ‘societi cu
rspundere limitat’;
(x) companies under Slovenian law known as: ‘delnika druba’, ‘komanditna druba’, ‘druba z omejeno odgovor
nostjo’;
(y) companies under Slovak law known as: ‘akciová spolonos’, ‘spolonos s ruením obmedzenm’, ‘komanditná
spolonos’;
(z) companies
under
Finnish
law
known
as
‘osakeyhti’/‘aktiebolag’,
‘osuuskunta’/‘andelslag’,
‘sstpankki’/‘sparbank’
and
‘vakuutusyhti’/‘frskringsbolag’;
(aa) companies under Swedish law known as ‘aktiebolag’, ‘frskringsaktiebolag’, ‘ekonomiska freningar’, ‘sparbanker’,
‘msesidiga frskringsbolag’, ‘frskringsfreningar’;
(ab) companies incorporated under the law of the United Kingdom.
PART B
List of taxes referred to in Article 2(a)(iii)
— impt des sociétés/vennootschapsbelasting in Belgium,
— корпоративен данък in Bulgaria,
— da z píjm právnickch osob in the Czech Republic,
— selskabsskat in Denmark,

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L 345/14
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Official Journal of the European Union
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— Krperschaftssteuer in Germany,
— tulumaks in Estonia,
— corporation tax in Ireland,
— φρο εισοδματο νομικν προσπων κερδοσκοπικο χαρακτρα in Greece,
— impuesto sobre sociedades in Spain,
— impt sur les sociétés in France,
— imposta sul reddito delle società in Italy,
— φρο εισοδματο in Cyprus,
— uzēmumu ienākuma nodoklis in Latvia,
— pelno mokestis in Lithuania,
— impt sur le revenu des collectivités in Luxembourg,
— társasági adó, osztalékadó in Hungary,
— taxxa fuq l-income in Malta,
— vennootschapsbelasting in the Netherlands,
— Krperschaftssteuer in Austria,
— podatek dochodowy od osób prawnych in Poland,
— imposto sobre o rendimento das pessoas colectivas in Portugal,
— impozit pe profit in Romania,
— davek od dobika pravnih oseb in Slovenia,
— da z príjmov právnickch osb in Slovakia,
— yhteisjen tulovero/inkomstskatten fr samfund in Finland,
— statlig inkomstskatt in Sweden,
— corporation tax in the United Kingdom.

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Union L
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ANNEX II
PART A
Repealed Directive with list of its successive amendments
(referred to in Article 9)
Council Directive 90/435/EEC
(OJ L 225, 20.8.1990, p. 6).
Point XI.B.I.3 of Annex I to the 1994 Act of Accession
(OJ C 241, 29.8.1994, p. 196).
Council Directive 2003/123/EC
(OJ L 7, 13.1.2004, p. 41).
Point 9.8 of Annex II to the 2003 Act of Accession
(OJ L 236, 23.9.2003, p. 555).
Council Directive 2006/98/EC
Annex, point 7 only
(OJ L 363, 20.12.2006, p. 129).
PART B
List of time limits for transposition into national law
(referred to in Article 9)
Directive Time
limit
for
transposition
90/435/EEC 31
December
1991
2003/123/EC 1
January
2005
2006/98/EC 1
January
2007

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L 345/16
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Official Journal of the European Union
29.12.2011
ANNEX III
Correlation Table
Directive 90/435/EEC This
Directive
Article 1(1) first to fourth indents Article
1(1)(a)
to
(d)
Article 1(2) Article
1(2)
Article 2(1) first part of the introductory phrase Article
2
introductory
phrase
Article 2(1) second part of the introductory phrase Article
2(a),
introductory
phrase
Article 2(1)(a) Article
2(a)(i)
Article 2(1)(b) Article
2(a)(ii)
Article 2(1)(c) introductory phrase of the first subparagraph Article 2(a)(iii)
and second subparagraph
Article 2(1)(c), first subparagraph, first to twenty-seventh Annex I, Part B, first to twenty-seventh indents
indents
Article 2(2) Article
2(b)
Article 3(1) introductory phrase Article
3(1),
introductory
phrase
Article 3(1)(a) first subparagraph, initial words Article
3(1)(a),
introductory
phrase
Article 3(1)(a) first subparagraph, final words Article
3(1)(a)(i)
Article 3(1)(a) second subparagraph Article
3(1)(a)(ii)
Article 3(1)(a) third subparagraph
—
Article 3(1)(a) fourth subparagraph
—
Article 3(1)(b) Article
3(1)(b)
Article 3(2) first and second indents Article
3(2)(a)
and
(b)
Article 4(1) first and second indents Article
4(1)(a)
and
(b)
Article 4(1a) Article
4(2)
Article 4(2) first sentence Article
4(3)
first
subparagraph
Article 4(2) second sentence Article
4(3)
second
subparagraph
Article 4(3) first subparagraph Article
4(4)
Article 4(3) second subparagraph Article
4(5)
Articles 5, 6 and 7 Articles
5,
6
and
7
Article 8(1)
—
Article 8(2) Article
8
— Article
9
— Article
10
Article 9 Article
11
Annex Annex
I,
Part
A
— Annex
II
— Annex
III

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