Pensioenfonds Metaal en Techniek v Skatteverket.
Date: 2016-06-02
27


It follows from settled case-law that the measures prohibited by Article 63(1) TFEU, as restrictions on the movement of capital, include those that 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 judgment of 8 November 2012 in Commission v Finland, C‑342/10, EU:C:2012:688, paragraph 28, and 22 November 2012 in Commission v Germany, C‑600/10, not published, EU:C:2012:737, paragraph 14).
28


Specifically, the less favourable treatment by a Member State of dividends paid to non-resident pension funds, compared to the treatment of dividends paid to resident pension funds, is liable to deter companies established in a Member State other than that first Member State from pursuing investments in that same first Member State and, consequently, amounts to a restriction of the free movement of capital, prohibited, in principle, under Article 63 TFEU (see judgment of 8 November 2012 in Commission v Finland, C‑342/10, EU:C:2012:688, paragraph 33, and 22 November 2012 in Commission v Germany, C‑600/10, not published, EU:C:2012:737, paragraph 15).
34


It is for the referring court, which alone can know precisely the facts of the case before it, to assess whether, with regard to the dividends at issue in this case, the levy on the appellants in the main proceedings of the withholding tax of 15% pursuant to the bilateral agreement on double taxation results in that appellant, ultimately, bearing heavier tax burdens in Sweden than those borne by resident pension funds in respect of similar dividends (see, to that effect, judgment of 17 September 2015 in Miljoen and Others, C‑10/14, C‑14/14 and C‑17/14, EU:C:2015:608, paragraph 48).
37


It is noteworthy that, first, if, according to the Swedish Government, the method of lump sum taxation is intended to achieve a uniform taxation of direct and indirect savings and level out taxation over time, it is nevertheless apparent from the file before the Court that capital yield tax, which applies to resident pension funds, is calculated annually. The Court has previously held that the relevant period, for the purposes of comparing tax burdens on dividends paid to residents and non-residents, is the period taken into account for dividends paid to residents (see, to that effect, judgment of 17 September 2015 in Miljoen and Others, C‑10/14, C‑14/14 and C‑17/14, EU:C:2015:608, paragraph 51).
38


Moreover, the Court has already held that, regarding the freedom of establishment, even if a Member State’s tax system is favourable to non-resident companies more often than not, that does not prevent it leading, where that system proves disadvantageous for those companies, to an inequality of treatment in relation to resident taxpayers and thus creating a hindrance to the freedom of establishment (see, to that effect, judgments of 14 December 2000 in AMID, C‑141/99, EU:C:2000:696, paragraph 27, and 22 March 2007 in Talotta, C‑383/05, EU:C:2007:181, paragraph 31). Similarly, the Court has previously held that the fact that the applicable national rules place non-residents at a disadvantage cannot be compensated for by the fact that, in other situations, that same legislation does not discriminate between non-residents and residents (judgment of 18 July 2007 in Lakebrink and Peters-Lakebrink, C‑182/06, EU:C:2007:452, paragraph 23).
39


It follows from such an interpretation that a potentially less favourable treatment of dividends distributed to non-resident pension funds during one tax year cannot be compensated by their potentially favourable treatment during other tax years.
41


It follows that the assessment of whether there exists a potentially detrimental treatment of the dividends paid to non-resident funds must be undertaken for each tax year, taken individually.
46


That provision, in so far as it amounts to a derogation from the fundamental principle of free movement of capital, must be interpreted strictly. It may not be therefore interpreted as meaning that all tax legislation that draws a distinction between taxpayers on the basis of their place of residence or the Member State in which they invest their capital is automatically compatible with the TFEU. Indeed, the derogation in Article 65(1)(a) TFEU is itself limited by Article 65(3) TFEU, which provides that the national provisions referred to in paragraph 1 of that Article ‘shall not constitute a means of arbitrary discrimination or a disguised restriction on the free movement of capital and payments as defined in Article 63 [TFEU]’ (judgment of 10 April 2014 in Emerging Markets Series of DFA Investment Trust Company, C‑190/12, EU:C:2014:249, paragraphs 55 and 56 and the case-law cited).
47


The differences in treatment authorised by Article 65(1)(a) TFEU must therefore be distinguished from discrimination prohibited by Article 65(3) TFEU. It is clear from the Court’s case-law that, before national tax legislation, such as that at issue in the main proceedings, may be regarded as compatible with the provisions of the Treaty on the free movement of capital, the difference in treatment must concern situations not objectively comparable or be justified by an overriding reason in the public interest (see judgment of 10 May 2012 in Santander Asset Management SGIIC and Others, C‑338/11 to C‑347/11, EU:C:2012:286, paragraph 23 and the case-law cited).
48


It should be noted 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 (judgment of 8 November 2012 in Commission v Finland, C‑342/10, EU:C:2012:688, paragraph 36 and case-law cited), as well as the purpose and content of the latter (see judgment of 10 May 2012 in Commission v Estonia, C‑39/10, EU:C:2012:282, paragraph 51).
49


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 an objectively different situation (see judgment of 10 May 2012 in Santander Asset Management SGIIC and Others, C‑338/11 to C‑347/11, EU:C:2012:286, paragraph 28).
64


That being noted, it is important, moreover, to observe that, if the application of two different taxation methods to resident and non-resident pension funds is in this instance justified by the difference in situation of these two categories of taxpayers, the Court has previously held that, in relation to professional expenses directly linked to an activity that has generated taxable income in a Member State, residents and non-residents of that State are in a comparable situation (judgment of 17 September 2015, Miljoen and Others, C‑10/14, C‑14/14 and C‑17/14, EU:C:2015:608, paragraph 57).