I am sure you are all aware that recently the Dutch Supreme Court referred to the EUCJ two preliminary rulings on whether foreign investment funds should benefit from the same dividend withholding tax exemptions available for domestic funds (FBIs) and the specific features to check when comparing both.
It is true that it has taken years for the Dutch court to change its traditional view that Dutch funds were incomparable, but it is always better late than never.
Yet it has gone unnoticed that at the same time the Spanish Supreme Court has issued several orders on deciding whether US funds should benefit from the Spanish dividend withholding tax benefits applicable to Spanish funds (and EU UCITS) under article 63 TFEU, stating that this issue lacks importance for the creation of jurisprudence. These orders confirm previous judgments from the Madrid court denying equal treatment to third countries’ funds. So we will not have judgments from the Supreme Court on this matter and, of course, no referrals to the EUCJ from Spain.
In view of these developments, lately, I have been seriously considering moving to Amsterdam to breathe the fresh breeze on EU fundamental freedoms coming from the Dutch Supreme Court. But then I remembered that the Spanish High Court (which has shown for years that it backs EU freedoms much more than the Madrid and the Supreme Courts) is about to issue judgments on this specific matter. So before buying my bike, I will cross my fingers and hope that the Spanish High Court ignores the views of its bosses at the Supreme Court and follows the Dutch precedents, no matter how strange this sounds.