The Advocate General of the European Court of Justice (ECJ) issued an opinion on 10 September 2015 in the case of Pensioenfonds Metaal en Techniek v Skatteverket (Case C-252/14).

The Supreme Administrative Court of Sweden had asked the ECJ for a preliminary ruling in this case. The issue put to the ECJ was whether Art 63 of the Treaty on the Functioning of the EU (TFEU) is an obstacle to national legislation providing that dividends from a resident company are taxed at source if the shareholder is resident in another EU member state while those dividends if paid to a resident shareholder would be subject to a tax computed as a definitive lump sum and on a fictive yield that is intended to correspond over time to the normal taxation of yields on capital.

EU law

Art. 63 (1) TFEU states that restrictions on the movement of capital between EU member states and between member states and third countries are prohibited.

Art. 65 (1) (a) however permits member states to apply the provisions of their tax law that distinguish between taxpayers who are not in the same situation in relation to their place of residence or the place where their capital is invested.

Art. 65 (1) (b) permits member states to take all necessary measures to prevent infringements of national law, in particular in the field of taxation and the prudential supervision of financial institution; or implement procedures for the declaration of capital movements; or to take measures that are justified on grounds of public policy or public security.

Advocate General’s opinion

The Advocate General’s opinion issued on 10 September 2015 was that Art. 63 (1) and Art. 65 (1) TFEU are not an obstacle to national tax legislation requiring dividends from a resident company to be taxed at source if the shareholder receiving the dividend is resident in another EU member state, while the dividends if paid to a resident shareholder would be taxed on the basis of a lump sum and a notional yield that correspond over time to the normal taxation of a yield from capital.

When the ECJ issues its preliminary ruling on the matter it may take into account the opinion of the Advocate General but is not obliged to follow it.