CJEU - Recent Developments in Direct Taxation 2024

1. Overview

This report focuses on an Austrian follow-up case to the CJEU’s judgement in F.E. Familienprivatstiftung Eisenstadt (C-589/13) that was rendered in 2015. Two previous comments on the earlier case (‘pending’ and ‘recent’) have been made by this author, both available in the published compilations of the respective cases presented in this conference series. In essence, the issue in the present case is whether the revised Austrian legislation, which had been enacted in response to the F.E. Familienprivatstiftung Eisenstadt case shortly thereafter, fully honoured the outcome of that CJEU decision.

In three separate judgements (with similar fact patterns), three different branches of the Austrian Federal Tax Court (Bundesfinanzgericht - BFG, the tax court of first instance in Austria) ruleed that there is a continued infringement of the free movement of capital also under the revised Austrian legislation. The BFG, in all its three decisions, held that this outcome was even an acte clair, given the CJEU’s earlier ruling in F.E. Familienprivatstiftung Eisenstadt. Somewhat contraS. 102dictory to the assumed acte clair nature of the issue, in all three cases, the BFG granted a leave for...