X BV (Advocate Generals opinion)

(Request for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands))

(Article 63 TFEU – Territorial scope of the free movement of capital – Movement of capital from a Member State to an overseas country and territory (OCT) belonging to it – Notion of a third country under Article 63 TFEU – Article 64(1) TFEU – Standstill clause – Restrictions existing on 31 December 1993)

Joined Cases C-24/12 X BV and C-27/12 TBG Limited concern allegedly discriminatory rules on withholding tax applicable to the issue of share dividends in the Netherlands, with dividends paid to companies established in the Netherlands Antilles being subjected to different treatment than those received by companies established in the Netherlands.

The Hoge Raad der Nederlanden (Supreme Court of the Netherlands) has referred to the Court of Justice three preliminary questions concerning the legal status of the Netherlands Antilles, in relation to the Netherlands, for the purposes of the free movement of capital between the European Union and third countries.

More specifically, the Hoge Raad wants to find out whether movements of capital from the Netherlands to the Netherlands Antilles fall within the scope ratione materiae of Article 56(1) EC, or whether the situation is purely internal. If Article 56(1) applies, the Hoge Raad would like guidance on the approach to be taken to the so called ‘standstill clause’ provided by Article 57 EC (Article 64 TFEU).