Joined Cases C-338/11 to C-347/11

Santander Asset Management SGIIC SA, on behalf of FIM Santander Top 25 Euro Fi (C-338/11)

v

Directeur des résidents à l'étranger et des services généraux

and

Santander Asset Management SGIIC SA, on behalf of Cartera Mobiliaria SA SICAV (C-339/11 to C-347/11) and Others

v

Ministre du Budget, des Comptes publics, de la Fonction publique et de la Réforme de l’État

(References for a preliminary ruling from the tribunal administratif de Montreuil)

‛Articles 63 TFEU and 65 TFEU — Undertakings for collective investments in transferable securities (UCITS) — Different treatment of dividends paid to non-resident UCITS, subject to withholding tax, and dividends paid to resident UCITS, not subject to such tax — Whether it is necessary, for the purpose of determining whether the national measure is in conformity with the free movement of capital, to take account of the situation of shareholders — No such need’

Summary of the Judgment

Free movement of capital — Restrictions — Tax legislation — Corporation tax — Taxation of dividends paid to undertakings for collective investments

(Arts 63 TFEU and 65 TFEU)

Articles 63 TFEU and 65 TFEU must be interpreted as precluding the legislation of a Member State which provides for the taxation, by means of withholding tax, of nationally-sourced dividends when they are received by undertakings for collective investments in transferable securities (UCITS) resident in another State, whereas such dividends are exempt from tax when received by UCITS resident in the Member State in question.

With regard, in particular, to the comparability of situations, where a Member State has chosen to exercise its tax jurisdiction over dividends distributed by resident companies on the sole basis of the place of residence of the recipient UCITS, the tax situation of the latter’s shareholders is irrelevant for the purpose of determining whether or not such legislation is discriminatory. Where national tax legislation establishes a distinguishing criterion for the taxation of distributed profits, account must be taken of that criterion in determining whether the situations are comparable. Moreover, only the relevant distinguishing criteria established by the legislation in question must be taken into account in determining whether the difference in treatment resulting from that legislation reflects situations which are objectively different.

In the light of the distinguishing criterion established by the national legislation concerned, based solely on the UCITS’ place of residence, the situations must be compared only at the level of the investment vehicle in order to determine whether that legislation is discriminatory. With regard to national legislation which seeks to prevent dividends distributed by resident companies being subject to a series of charges to tax, the situation of a resident recipient UCITS is comparable to that of a non-resident recipient UCITS. Accordingly, the different treatment of resident UCITS, which are exempt from tax on nationally-sourced dividends received by them, and non-resident UCITS, which are subject to withholding tax in respect of such dividends, cannot be justified by a relevant difference in their situations.

(see paras 27, 28, 39, 42, 44, 55, operative part)

Joined Cases C-338/11 to C-347/11

Santander Asset Management SGIIC SA, on behalf of FIM Santander Top 25 Euro Fi (C-338/11)

v

Directeur des résidents à l'étranger et des services généraux

and

Santander Asset Management SGIIC SA, on behalf of Cartera Mobiliaria SA SICAV (C-339/11 to C-347/11) and Others

v

Ministre du Budget, des Comptes publics, de la Fonction publique et de la Réforme de l’État

(References for a preliminary ruling from the tribunal administratif de Montreuil)

‛Articles 63 TFEU and 65 TFEU — Undertakings for collective investments in transferable securities (UCITS) — Different treatment of dividends paid to non-resident UCITS, subject to withholding tax, and dividends paid to resident UCITS, not subject to such tax — Whether it is necessary, for the purpose of determining whether the national measure is in conformity with the free movement of capital, to take account of the situation of shareholders — No such need’

Summary of the Judgment

Free movement of capital — Restrictions — Tax legislation — Corporation tax — Taxation of dividends paid to undertakings for collective investments

(Arts 63 TFEU and 65 TFEU)

Articles 63 TFEU and 65 TFEU must be interpreted as precluding the legislation of a Member State which provides for the taxation, by means of withholding tax, of nationally-sourced dividends when they are received by undertakings for collective investments in transferable securities (UCITS) resident in another State, whereas such dividends are exempt from tax when received by UCITS resident in the Member State in question.

With regard, in particular, to the comparability of situations, where a Member State has chosen to exercise its tax jurisdiction over dividends distributed by resident companies on the sole basis of the place of residence of the recipient UCITS, the tax situation of the latter’s shareholders is irrelevant for the purpose of determining whether or not such legislation is discriminatory. Where national tax legislation establishes a distinguishing criterion for the taxation of distributed profits, account must be taken of that criterion in determining whether the situations are comparable. Moreover, only the relevant distinguishing criteria established by the legislation in question must be taken into account in determining whether the difference in treatment resulting from that legislation reflects situations which are objectively different.

In the light of the distinguishing criterion established by the national legislation concerned, based solely on the UCITS’ place of residence, the situations must be compared only at the level of the investment vehicle in order to determine whether that legislation is discriminatory. With regard to national legislation which seeks to prevent dividends distributed by resident companies being subject to a series of charges to tax, the situation of a resident recipient UCITS is comparable to that of a non-resident recipient UCITS. Accordingly, the different treatment of resident UCITS, which are exempt from tax on nationally-sourced dividends received by them, and non-resident UCITS, which are subject to withholding tax in respect of such dividends, cannot be justified by a relevant difference in their situations.

(see paras 27, 28, 39, 42, 44, 55, operative part)