On October 6, 2021 on the website of the Court of Justice of the European Union (CJEU) the opinion of Advocate General H. Saugmandsgaard Øe in Case C-342/20, Veronsaajien oikeudenvalvontayksikkö (Exonération des fonds d’investissement contractuels) (ECLI:EU:C:2021:823), was published.
The preliminary question referred by the Helsingin hallinto-oikeus (Finland) is whether the Articles 49, 63 and 65 TFEU are to be interpreted as meaning that they preclude national legislation under which only foreign open-ended investment funds constituted by contract can be regarded as equivalent to Finnish investment funds exempt from income tax, meaning that foreign investment funds established in a legal form other than by contract are subject to withholding tax in Finland, even though there are otherwise no significant objective differences between their situation and that of Finnish investment funds?
The Advocate General proposes the following answer to the question referred by the Helsingin hallinto-oikeus:
Articles 63 and 65 TFEU are to be interpreted as meaning that the requirement, laid down in the tax legislation of a Member State, that an investment fund, in order to benefit from tax transparency, must be established by agreement is contrary to the free movement of capital, for in so far as this leads to the exclusion of investment funds set up by statute in other Member States, even though these funds are objectively comparable, in terms of transparency, to funds set up by agreement.
The full text of the opinion of Advocate General H. Saugmandsgaard Øe can be found here. (Although available in many other languages, the text of the opinion was not yet available in the English language at the time we published this article)
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