Failure to comply with the Commission's opinions on discriminatory tax provisions has lead to the referral of Austria, Germany and Portugal to the European Court of Justice.

Austrian Rules on Fiscal Representatives

The Commission considers the Austrian rules which request foreign investment funds, real estate funds and credit institutions to appoint a fiscal representative to be discriminatory. The Commission also considers the prohibition for foreign credit institutions and certified public accountants to be appointed as fiscal representatives for investors in investment funds or real estate funds to be discriminatory and incompatible with the freedom to provide services.

German Discriminatory Taxation of Foreign Pension Institutions

In Germany, dividends paid by German companies to German “Pensionskassen” are either subject to a reduced withholding tax rate, or the “Pensionskasse” can benefit from a partial refund of the withholding tax paid. However, similar institutions established elsewhere in the EU and in the European Economic Area cannot benefit from this reduced rate or partial refund.

Portuguese Discriminatory Taxation of Outbound Dividends

Portuguese tax rules may in certain cases lead to higher taxation of dividend payments to foreign companies (outbound dividends) than dividend payments to domestic companies (domestic dividends). The Commission considers that these rules restrict both the free movement of capital and the freedom of establishment.

For more details on each case see http://europa.eu/rapid/pressReleasesAction.do?reference=IP/10/662&format=HTML&aged=0&language=en&guiLanguage=en