ECJ – Recent Developments in Direct Taxation 2014

I. S. 123Introduction

Withholding taxes are more than frequently an issue with which the European Court of Justice (ECJ) has to deal. Not only dividend withholding taxes (DWHT) have been assessed for their consistency with EU law, but also, for example, wage taxes and interest withholding taxes. Although a large body of case law has been developed on withholding taxes, on many issues, unclearness or inconsistency with EU law of the domestic withholding taxes, especially DWHT, is still present. The three cases to be discussed in this paper are examples of a number of still existing open questions, at least according to the Dutch Supreme Court. The cases to be discussed are: Case 10/14 (Miljoen), Case 10/14 (X), and Case 17/14 (Société Générale).

They have in common that all of them deal with dismissed refund claims of Dutch DWHT by non-resident portfolio shareholders. Furthermore, all cases focus on the question of what are the right elements to be taken into account when comparing the situation of a non-resident taxpayer with that of a resident taxpayer in order to determine whether the different treatment constitutes a forbidden discrimination. The cases do not address issues concerning j...