Taxation of Corporate-Based Investment Funds in Finland – A SCPI (Case C-342/20) as an Example of Discriminatory Treatment Based on Legal Form

Abstract

This article analyses the decision handed down by the ECJ in Case C-342/20, which pertains to the tax treatment of a French investment fund in Finland. The Finnish withholding tax regime applied to foreign investment funds has been challenged in several tax disputes since Aberdeen in 2009. In 2020, the Finnish legislator enacted new legislation on the tax treatment of foreign investment funds. The compatibility of this legislation with the free movement of capital is at the centre of the ECJ decision discussed in this article. The ECJ ruling in Case C-342/20 follows closely the way paved by earlier ECJ case law where unfavourable tax treatment of non-resident investors has been found to be widely incompatible with the fundamental freedoms. After this decision, it should be clear that cross-border payments of dividends and other investment income from EU Member States cannot be subject to disadvantageous tax treatment solely based on the legal form of the non-resident investors.