The TFEU Eligibility of Non-EU Investment Funds Subjected to Discriminatory Dividend Withholding Taxes

Abstract

Non-EU or third-country investment funds may be subjected to final withholding taxes on their dividend income earned in various Member States within the EU. Such dividend withholding taxes may be discriminatory in nature given that EU or Member State investment funds may not be subjected to them. This raises the question whether, and to what extent, third-country investment funds could access the fundamental freedoms (like the free movement of capital) – enshrined in TFEU – in order to gain some measure of tax relief from discriminatory dividend withholding taxes. This article examines what terms of comparability the European Court of Justice (‘ECJ’) has developed in its recent case law in determining whether a restrictive dividend withholding tax is discriminatory vis-à-vis a third-country investment fund as compared to a Member State investment fund. In particular, the article examines how the ECJ considers compliance with UCITS (as well as other regulatory frameworks) in its determination of whether restrictive dividend withholding taxes are discriminatory. Regarding grounds of justification, the article considers ECJ case law that – within a third-country context – establishes that some forms of justification (like the need to guarantee fiscal supervision) could very well justify a discriminatory dividend withholding tax under certain circumstances.