Brussels, 14 May 2009
Direct taxes: The European Commission formally requests Austria to amend certain rules related to the appointment of fiscal representatives
The European Commission has formally requested Austria to change its tax provisions related to the appointment of a fiscal representative. The Commission considers that the rules which request foreign investment funds, real estate funds and credit institutions to appoint a fiscal representative result in discriminatory treatment. The Commission also considers discriminatory the prohibition for foreign credit institutions and certified public accountants to be appointed as fiscal representative for investors in investment fund or real estate fund and considers these rules to be incompatible with the freedom to provide services. The request takes the form of a reasoned opinion (second step of the infringement procedure provided for in Article 226 of the EC Treaty). If there is no satisfactory reaction to the reasoned opinion within two months, the Commission may decide to refer the matter to the Court of Justice of the European Communities.
This case concerns two aspects of the Austrian rules in respect to the appointment of a fiscal representative.
Under Austrian rules, domestic credit institutions managing domestic investment funds or real estate funds are exempted from the requirement to appoint a fiscal representative. On the contrary, foreign investment funds and real estate funds must always appoint a fiscal representative when carrying out operations in Austria. Moreover, foreign credit institution managing domestic investment funds or real estate funds must also appoint a fiscal representative. The Commission considers that these rules introduce a disproportionate restriction of the freedom to provide services.
In addition, Austrian rules introduce a discrimination against foreign credit institutions and foreign certified public accountants. Only a domestic credit institution or domestic certified public accountant can be appointed as a fiscal representative for investors in an investment fund or real estate fund. This constitutes direct discrimination based on the place of establishment of the service provider.
The Commission is of the opinion that Austria has in both cases failed to fulfil its obligations under Article 49 of the EC Treaty and Article 36 of the EEA Agreement, i.e. the freedom to provide services.
The Commission's case reference number is 2008/4638.
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