# C_2020137EN.01000201.xml

| 27.4.2020 | EN | Official Journal of the European Union | C 137/2 |
| --- | --- | --- | --- |

27.4.2020

EN

Official Journal of the European Union

C 137/2

---

Judgment of the Court (Seventh Chamber) of 30 January 2020 (request for a preliminary ruling from the Hoge Raad der Nederlanden — Netherlands) — Köln-Aktienfonds Deka v Staatssecretaris van Financiën

(Case C-156/17) (1)

(Reference for a preliminary ruling - Free movement of capital and liberalisation of payments - Restrictions - Taxation of dividends received by undertakings for collective investment in transferable securities (UCITS) - Refund of tax withheld on dividends - Conditions - Objective differentiation criteria - Criteria which are by nature or in fact favourable to resident taxpayers)

(2020/C 137/02)

Language of the case: Dutch

Referring court

Hoge Raad der Nederlanden

Parties to the main proceedings

Applicant: Köln-Aktienfonds Deka

Defendant: Staatssecretaris van Financiën

Interveners: Nederlandse Orde van Belastingadviseurs, Loyens en Loeff NV

Operative part of the judgment

| 1. | Article 63 TFEU must be interpreted as not precluding legislation of a Member State which provides that a non-resident investment fund cannot be granted, on the ground that it has not provided proof that its shareholders or participants meet the conditions laid down by that legislation, a refund of dividend tax withheld on dividends that it has received from corporate bodies established in that Member State, provided that those conditions do not de facto disadvantage non-resident investment funds and provided that the tax authorities require proof of compliance with those conditions to be provided also by resident investment funds, which it is for the referring court to verify; |
| --- | --- |

1.

Article 63 TFEU must be interpreted as not precluding legislation of a Member State which provides that a non-resident investment fund cannot be granted, on the ground that it has not provided proof that its shareholders or participants meet the conditions laid down by that legislation, a refund of dividend tax withheld on dividends that it has received from corporate bodies established in that Member State, provided that those conditions do not de facto disadvantage non-resident investment funds and provided that the tax authorities require proof of compliance with those conditions to be provided also by resident investment funds, which it is for the referring court to verify;

| 2. | Article 63 TFEU must be interpreted as precluding legislation of a Member State which provides that a non-resident investment fund cannot be granted a refund of dividend tax which it has had to pay in that Member State, on the ground that it has not met the legal conditions for that refund, namely that it does not distribute the proceeds of its investments in full to its shareholders or participants on an annual basis within eight months of the end of its financial year, where, in its Member State of establishment, the proceeds of its investments which have not been distributed are deemed to have been distributed or are taken into account in the tax which that Member State levies on shareholders or participants as though that profit had been distributed and where, having regard to the objective underlying those conditions, such a fund is in a situation that is comparable to that of a resident fund which benefits from the refund of that tax, which it is for the referring court to verify. |
| --- | --- |

2.

Article 63 TFEU must be interpreted as precluding legislation of a Member State which provides that a non-resident investment fund cannot be granted a refund of dividend tax which it has had to pay in that Member State, on the ground that it has not met the legal conditions for that refund, namely that it does not distribute the proceeds of its investments in full to its shareholders or participants on an annual basis within eight months of the end of its financial year, where, in its Member State of establishment, the proceeds of its investments which have not been distributed are deemed to have been distributed or are taken into account in the tax which that Member State levies on shareholders or participants as though that profit had been distributed and where, having regard to the objective underlying those conditions, such a fund is in a situation that is comparable to that of a resident fund which benefits from the refund of that tax, which it is for the referring court to verify.

---

(1)  OJ C 168, 29.5.2017.

---