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ECJ finds Finnish dividend withholding tax regime incompatible with EC freedom of establishment — Orbitax Tax News & Alerts

On 18 June 2009, the European Court of Justice (ECJ) gave its decision in Case C-303/07 Aberdeen Property Fininvest Alpha Oy. The Finnish Supreme Administrative Court (Korkein hallinto-oikeus) had requested a preliminary ruling from the ECJ on 27 June 2007

The  ECJ held that Arts. 43 EC and 48 of the EC Treaty must be interpreted as precluding legislation of a Member State, which exempts dividends distributed by a resident subsidiary to a resident parent company in that State from withholding tax, but charges withholding tax on similar dividends paid to a parent company established in the form of an open-ended investment company (SICAV) resident in another Member State, which has a legal form unknown in the law of the former State and does not appear on the list of companies referred to in Art. 2(a) of EC Parent Subsidiary Directive  90/435/EEC.