Case C‑480/16

Fidelity Funds and Others

v

Skatteministeriet

(Request for a preliminary ruling from the Østre Landsret)

(Reference for a preliminary ruling — Free movement of capital and liberalisation of payments — Restrictions — Taxation of dividends paid to undertakings for collective investment in transferable securities (UCITS) — Dividends paid by companies resident in one Member State to non-resident UCITS — Tax exemption for dividends paid by companies resident in one Member State to resident UCITS — Justifications — Balanced allocation between Member States of the power to impose taxes — Coherence of the tax system — Proportionality)

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)