From the European Commission’s February 2021 infringement package: Sweden and France requested to stop applying a higher dividend withholding tax to foreign pension institutions and insurance companies respectively.
The European Commission formally asks France to change its withholding tax rules on dividends paid to “unit linked insurance policies” (“ULIPs”) offered by foreign insurance companies established in the EU or EEA. A ULIP is a life insurance scheme where the premiums paid by the policy-holder are used to purchase units in investment funds selected by that person, and where the dividends paid out by the funds are passed on by the insurer to the policy-holder. Insurance companies established in the EU or EEA are required to pay a final withholding tax on French dividends received in relation to ULIPs. However, insurance companies established in France either pay no withholding tax on dividends in relation to ULIPs, or can credit the withholding tax paid against French corporation tax, which amounts to zero. This is because the dividends received constitute deductible provisions or technical reserves. The Commission deems that these rules infringe on the free movement of capital (Article 63(1) of the TFEU and Article 40 of the EEA Agreement). France has two months to reply to the arguments raised by the Commission. Otherwise, the Commission may decide to send a reasoned opinion.
The European Commission formally asks Sweden to look at a potential incompatibility of its legislation with EU law on taxation of dividends paid to public pension institutions. Swedish public pension funds are, as government agencies, entirely exempt from tax liability. Dividends paid to equivalent non-resident public pension institutions are subject to a withholding tax, commonly at a reduced rate of 15% as provided for in the tax treaties concluded between Sweden and other EU/EEA countries. The Commission considers that such a fiscal scheme under which dividends paid to foreign public pension institutions are subject to less favorable treatment than similar distributions in purely domestic situations may infringe the free movement of capital (Article 63(1)of the TFEU and Article 40 of the EEA Agreement). Sweden has two months to reply to the arguments raised by the Commission after which the Commission may decide to send a reasoned opinion.
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