Koln-Aktienfonds Deka (Opinion) French Text [2019] EUECJ C-156/17_O (05 September 2019)

Koln-Aktienfonds Deka (Opinion) French Text [2019] EUECJ C-156/17_O (05 September 2019)

Article 63 TFEU does not preclude a Member State from refusing a refund of dividend withholding tax to a non-resident investment fund that fails to prove compliance with shareholder composition requirements, provided these requirements are applied equally to resident and non-resident funds and do not, in practice,...

Source-derived case information.

Citation
[2019] EUECJ C-156/17_O
Parties
Applicant: Köln-Aktienfonds Deka; Respondent: Staatssecretaris van Financiën; Intervener: Nederlandse Orde van Belastingadviseurs; Intervener: Loyens en Loeff NV
Jurisdiction
European Union
Procedural Posture
Preliminary Ruling (renvoi Préjudiciel) / Opinion of Advocate General
Outcome
Partial compatibility with EU law, subject to conditions; national court to verify factual application.
Legal Topics
Free Movement of Capital, Dividend Taxation, Collective Investment Undertakings, Discrimination, Proof of Shareholder Conditions, Redistribution Obligation
European Union Law Tax Law Free Movement of Capital Dividend Taxation Collective Investment Undertakings Discrimination Proof of Shareholder Conditions Redistribution Obligation

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Parties

Köln-Aktienfonds Deka

Applicant

Staatssecretaris van Financiën

Respondent

Nederlandse Orde van Belastingadviseurs

Intervener

Loyens en Loeff NV

Intervener

Procedural Posture

Preliminary Ruling (renvoi Préjudiciel) / Opinion of Advocate General

  1. 1 Whether Dutch tax law conditions for refund of dividend withholding tax to non-resident investment funds are compatible with Article 63 TFEU (free movement of capital), specifically: (1) the requirement to prove shareholder composition; (2) the obligation to redistribute profits within a set period.

Ratio Decidendi

Article 63 TFEU does not preclude a Member State from refusing a refund of dividend withholding tax to a non-resident investment fund that fails to prove compliance with shareholder composition requirements, provided these requirements are applied equally to resident and non-resident funds and do not, in practice, favor residents. However, Article 63 TFEU precludes refusal of a refund solely because a non-resident fund does not meet a formal redistribution obligation, if it is impossible or excessively difficult to comply and the fund can demonstrate that, under its home state's law, equivalent taxation or deemed distribution occurs. The national court must verify whether the Dutch rules,...

Court Disposition

Partial compatibility with EU law, subject to conditions; national court to verify factual application.

Orders

  • Article 63 TFEU does not preclude refusal of refund for failure to prove shareholder conditions if applied equally and not discriminatory in practice.
  • Article 63 TFEU precludes refusal of refund for failure to meet redistribution obligation if equivalent effect is achieved under home state law and compliance is impossible or excessively difficult; national court to verify facts.