Opinion of the Advocate General — ECLI:EU:C:2017:1015
Date: 2017-12-20
Language of the case: Danish
Subject matter: Right of establishment;Taxation;Free movement of capital
Procedure: Reference for a preliminary ruling
Origin: Denmark

Summary — Judgment of the Court (Fifth Chamber), 21 June 2018 1. Freedom to provide services — Free movement of capital — Provisions of the Treaty — Examination of a national measure affecting both freedoms — Criteria for determining the applicable rules (Arts 56 TFEU and 63 TFEU) 2. Free movement of capital and liberalisation of payments — Restrictions — Tax legislation — Taxation of dividends — Dividends paid to undertakings for collective investment in transferable securities — Exemption, under certain conditions, from withholding tax on nationally-sourced dividends paid to resident undertakings — Taxation, by means of withholding tax, of nationally-sourced dividends paid to undertakings resident in another Member State — Examination of comparability of a cross-border situation with an internal situation — Taking into account of the objective pursued by the national provisions — Prevention or mitigation of a series of charges to tax or economic double taxation — Member State in which the dividends are sourced exercising its power of taxation on the income received by non-resident undertakings — Objectively comparable situations (Art. 63 TFEU) 3. Free movement of capital and liberalisation of payments — Restrictions — Tax legislation — Taxation of dividends — Dividends paid to undertakings for collective investment in transferable securities — Exemption, under certain conditions, from withholding tax on nationally-sourced dividends paid to resident undertakings — Taxation, by means of withholding tax, of nationally-sourced dividends paid to undertakings resident in another Member State — Objectively comparable situations — Justification — Coherence of the tax system — Proportionality — Disproportionate (Art. 63 TFEU) 4. Free movement of capital and liberalisation of payments — Restrictions — Tax legislation — Taxation of dividends — Dividends paid to undertakings for collective investment in transferable securities — Exemption, under certain conditions, from withholding tax on nationally-sourced dividends paid to resident undertakings — Taxation, by means of withholding tax, of nationally-sourced dividends paid to undertakings resident in another Member State — Not permissible (Art. 63 TFEU) 1. See the text of the decision. (see paras 33, 37) 2. See the text of the decision. (see paras 53-63) 3. See the text of the decision. (see paras 69-75, 81-86) 4. Article 63 TFEU must be interpreted as precluding legislation of a Member State, such as that at issue in the main proceedings, under which the dividends distributed by a company resident in that Member State to a non-resident undertaking for collective investment in transferable securities (UCITS) are subject to withholding tax, while dividends distributed to a UCITS resident in that same Member State are exempt from such tax, provided that that undertaking makes a minimum distribution to its members, or technically calculates a minimum distribution, and withholds on that actual or notional distribution the tax payable by its members. (see para. 87, operative part)