Judgment of the Court (Third Chamber) of 21 January 2010 (reference for a preliminary ruling from the Tribunal de première instance de Mons — Belgium) — Société de Gestion Industrielle (SGI) v État belge

(Case C-311/08) (1)

(Freedom of establishment - Free movement of capital - Direct taxation - Income tax legislation - Determination of the taxable income of companies - Companies having a relationship of interdependence - Unusual or gratuitous advantage granted by a resident company to a company established in another Member State - Addition of the amount of the advantage in question to the profits of the resident company which granted it - Balanced allocation of the power to tax between Member States - Combating tax avoidance - Prevention of abuse - Proportionality)

2010/C 63/11

Language of the case: French

Referring court

Tribunal de première instance de Mons

Parties to the main proceedings

Applicant: Société de Gestion Industrielle (SGI)

Défendant: État belge

Re:

Reference for a preliminary ruling — Tribunal de première instance de Mons (Belgium) — Interpretation of Articles 12, 43, 48 and 56 EC — Permissibility of a national law providing for the taxation of a resident company on an unusual or gratuitous advantage granted to a non-resident company with which it has a relationship of interdependence but which does not provide for such taxation where the same advantage is granted to a resident company

Operative part of the judgment

Article 43 EC, read in conjunction with Article 48 EC, must be interpreted as not precluding, in principle, legislation of a Member State, such as that at issue in the main proceedings, under which a resident company is taxed in respect of an unusual or gratuitous advantage where the advantage has been granted to a company established in another Member State with which it has, directly or indirectly, a relationship of interdependence, whereas a resident company cannot be taxed on such an advantage where the advantage has been granted to another resident company with which it has such a relationship. However, it is for the referring court to verify whether the legislation at issue in the main proceedings goes beyond what is necessary to attain the objectives pursued by the legislation, taken together.

(1)  OJ C 260, 11.10.2008.