Kupongskatt på utländska offentliga pensionsinstitut - en inskränkning av den fria rörligheten för kapital?

Sammanfattning: Foreign public pension funds receiving dividends from Swedish companies are in Sweden subject to withholding tax of up to 30 percent of the gross amount of the dividends. The domestic equivalents, the Swedish governmental pension funds, the AP-funds, are exempt from income tax as they are a part of the Swedish state. This difference in taxation has given rise to infringement proceedings against Sweden, where the European Commission has argued that the Swedish rules are in violation of Article 63 TFEU. The European Commission believes that the AP-funds and foreign public pension funds are in an objectively comparable situation and should as a result be treated equally in terms of taxation. In contrast, the Swedish government argues that the subjects are not in comparable situations and that the difference in taxation can be justified by public interest. In January 2023, the same issue arose in a case in the Swedish Supreme Administrative Court, where the court has requested a preliminary ruling from the Court of Justice of the European Union. The aim of this thesis is to examine whether the Swedish tax rules concerning the taxation of the AP-funds and foreign public pension funds for dividends from Swedish companies are in violation of the rules of EU law on free movement of capital. In order to achieve this purpose an account is given of how the AP-funds and foreign public pension funds are taxed in Sweden. Furthermore, the thesis examines the European Commission’s infringement proceedings against Sweden and explores the rules set forth by EU law for national regulations. The most significant case for the thesis is the ruling by the Court of Justice of the European Union in the Pensioenfonds Metaal en Techniek case (C-252/14) and the Swedish Supreme Administrative Court's subsequent ruling in HFD 2017 ref. 9. The essay reaches the conclusion that the Swedish rules on withholding tax on dividends to foreign public pension funds are incompatible with the free movement of capital. The reason being that foreign public pension funds are in a comparable situation to that of the AP funds and that the differential tax treatment does not seem to be justifiable.