Köln-Aktienfonds Deka v Staatssecretaris van Financiën.
Date: 2020-01-30
31


In that regard, it should be noted that, under the second paragraph of Article 252 TFEU, it is the duty of the Advocate General, acting with complete impartiality and independence, to make, in open court, reasoned submissions on cases which, in accordance with the Statute of the Court of Justice, require his involvement. The Court is not bound either by the Advocate General’s Opinion or by the reasoning on which it is based (judgment of 22 June 2017, Federatie Nederlandse Vakvereniging and Others, C‑126/16, EU:C:2017:489, paragraph 31 and the case-law cited).
32


It should also be noted, in that context, that the Statute of the Court of Justice of the European Union and the Rules of Procedure of the Court make no provision for the parties in question or interested parties referred to in Article 23 of the Statute of the Court of Justice of the European Union to submit observations in response to the Advocate General’s Opinion (judgment of 25 October 2017, Polbud — Wykonawstwo, C‑106/16, EU:C:2017:804, paragraph 23 and the case-law cited). As a consequence, the fact that a party or interested party disagrees with the Advocate General’s Opinion, irrespective of the questions examined in the Opinion, cannot in itself constitute grounds justifying the reopening of the oral procedure (judgments of 25 October 2017, Polbud — Wykonawstwo, C‑106/16, EU:C:2017:804, paragraph 24, and of 29 November 2017, King, C‑214/16, EU:C:2017:914, paragraph 27 and the case-law cited).
42


It is important to note, in that regard, that it is for each Member State to organise, in compliance with EU law, its system for taxing distributed profits and to define, in that context, the tax base and the tax rate which apply to the shareholder receiving them (see, inter alia, judgments of 20 May 2008, Orange European Smallcap Fund, C‑194/06, EU:C:2008:289, paragraph 30; of 20 October 2011, Commission v Germany, C‑284/09, EU:C:2011:670, paragraph 45, and of 30 June 2016, Riskin and Timmermans, C‑176/15, EU:C:2016:488, paragraph 29).
43


It follows that Member States are free to provide for, for the purposes of encouraging the use of collective investment undertakings, a specific tax regime applicable to those undertakings and to the dividends received by them, and to define the material and formal conditions which must be respected to benefit from such a regime (see, to that effect, judgments of 9 October 2014, van Caster, C‑326/12, EU:C:2014:2269, paragraph 47, and of 24 October 2018, Sauvage and Lejeune, C‑602/17, EU:C:2018:856, paragraph 34).
44


Furthermore, it is inherent in the principle of the fiscal autonomy of Member States that they determine the evidence that must be provided to establish that the conditions in order to benefit from such a regime have been respected (see, to that effect, judgments of 30 June 2011, Meilicke and Others, C‑262/09, EU:C:2011:438, paragraph 37; of 9 October 2014, van Caster, C‑326/12, EU:C:2014:2269, paragraph 47; and of 24 October 2018, Sauvage and Lejeune, C‑602/17, EU:C:2018:856, paragraph 34).
45


Member States must nevertheless exercise their fiscal autonomy in accordance with the requirements of EU law, in particular those imposed by the Treaty provisions on the free movement of capital (judgment of 30 June 2011, Meilicke and Others, C‑262/09, EU:C:2011:438, paragraph 38).
49


In that regard, it follows from the Court’s case-law that the measures prohibited by Article 63(1) TFEU, as restrictions on the movement of capital, include those which are such as to discourage non-residents from making investments in a Member State or to discourage that Member State’s residents from doing so in other States (see judgments of 10 April 2014, Emerging Markets Series of DFA Investment Trust Company, C‑190/12, EU:C:2014:249, paragraph 39, and of 22 November 2018, Sofina and Others, C‑575/17, EU:C:2018:943, paragraph 23 and the case-law cited).
55


However, national legislation which applies without distinction to resident and non-resident operators may constitute a restriction on the free movement of capital. It follows from the Court’s case-law that even a differentiation based on objective criteria may de facto disadvantage cross-border situations (see, to that effect, judgment of 5 February 2014, Hervis Sport- és Divatkereskedelmi, C‑385/12, EU:C:2014:47, paragraphs 37 to 39).
56


That is the case where national legislation which applies without distinction to resident and non-resident operators reserves a tax advantage in situations in which an operator complies with conditions or obligations which are, by their nature or in fact, specific to the national market, in such a way that only operators present on the national market are capable of complying with those conditions or obligations, and non-resident operators which are comparable do not generally comply with those conditions or obligations (see, to that effect, judgments of 9 October 2014, van Caster, C‑326/12, EU:C:2014:2269, paragraphs 36 and 37, and of 8 June 2017, Van der Weegen and Others, C‑580/15, EU:C:2017:429, paragraph 29).
61


As regards, in the second place, the proof to be provided by non-resident investment funds in order to demonstrate that they meet the conditions allowing them to benefit from the FIE regime and, therefore, to obtain a refund of the dividend tax they have paid, it should be borne in mind that the tax authorities of a Member State are entitled to require the taxpayer to provide such proof as they may consider necessary in order to determine whether the conditions for a tax advantage provided for in the legislation at issue have been met and, consequently, whether to grant that advantage (judgment of 10 February 2011, Haribo Lakritzen Hans Riegel and Österreichische Salinen, C‑436/08 and C‑437/08, EU:C:2011:61, paragraph 95 and the case-law cited). The content, the form and the degree of detail which the information submitted by the taxpayer must satisfy in order to benefit from a tax advantage are determined by the Member State conferring such an advantage in order to enable it to apply the tax properly (see, to that effect, judgment of 9 October 2014, van Caster, C‑326/12, EU:C:2014:2269, paragraph 52).
62


However, in order not to make it impossible or excessively difficult for a non-resident taxpayer to obtain a tax advantage, it cannot be required to produce documents which comply in all respects with the form and degree of detail of the documentary evidence laid down in the national legislation of the Member State conferring that advantage if the documents provided by that taxpayer do enable that Member State to ascertain, clearly and precisely, that the conditions for obtaining the tax advantage in question have been met (see, to that effect, judgment of 30 June 2011, Meilicke and Others, C‑262/09, EU:C:2011:438, paragraph 46). As the Advocate General states in point 72 of his Opinion, non-resident taxpayers may not be subject to excessive administrative burdens that make it impossible for them to benefit from a tax advantage.
65


In those circumstances, the inadequate flow of information to the investor is not a problem for which the Member State concerned should have to answer (judgments of 10 February 2011, Haribo Lakritzen Hans Riegel and Österreichische Salinen, C‑436/08 and C‑437/08, EU:C:2011:61, paragraph 98, and of 30 June 2011, Meilicke and Others, C‑262/09, EU:C:2011:438, paragraph 48).
72


Furthermore, the free movement of capital cannot be understood as meaning that a Member State is required to adjust its tax rules on the basis of those of another Member State in order to ensure, in all circumstances, taxation which removes any disparities arising from national tax rules, given that the decisions made by a taxpayer as to investment in another Member State may be to the taxpayer’s advantage or not, according to circumstances (judgment of 7 November 2013, K, C‑322/11, EU:C:2013:716, paragraph 80 and the case-law cited).
76


It follows from the Court’s case-law that the comparability of a cross-border situation with an internal situation must be examined having regard to the aim pursued by the national provisions at issue, as well as the purpose and content of the latter (see, inter alia, judgment of 2 June 2016, Pensioenfonds Metaal en Techniek, C‑252/14, EU:C:2016:402, paragraph 48 and the case-law cited).
83


Such a restriction is permissible if it is justified only by overriding reasons in the public interest, if it is appropriate for ensuring the attainment of the objective that it pursues and does not go beyond what is necessary to attain it (judgment of 24 November 2016, SECIL, C‑464/14, EU:C:2016:896, paragraph 56).