According to articles 119 bis and 187 of the French code général des impôts, the dividends paid to foreign pension and investment funds are subject to a withholding tax of 25% or 15% if there is a bilateral treaty between France and the State where the investor is established. On the other hand the dividends paid to domestic pension and investment funds do not suffer any withholding tax.
The French highest court for administrative matters, the Conseil d'Etat, ruled on February 2009 that the withholding tax regime on dividends paid to European Union pension funds does not comply with the European Union principle of free movement of capital.
In 2010 the French government introduced new provisions
according to which the dividends paid to domestic and foreign
non-profit organizations, including pension funds, are taxed at the
same rate of 15%. However, as the European Commission pointed out,
these changes have never been applied in practice due to a lack of
administrative implementing rules.
The European institution enjoined France in its reasoned opinion of
18 March 2010 to put an end to this discriminatory tax treatment
against foreign pension and investment funds. Because of this
discrimination, the pension and investment funds established in
other States of the European Union and the European Economic Area
are disadvantaged compared to their France-based counterparts. On
top of that, the French customers enjoy less choice of pension and
investment funds.
On 19 May 2011, the European Commission referred France to the European Court of Justice considering this distinction in treatment as contrary to the free movement of capital of the article 63 of the Treaty on the Functioning of the European Union and 40 of the European Economic Area Agreement.
This infringement procedure against France corresponds to a guideline of the European Commission. As a reminder, the European institution published a reasoned opinion against very similar Polish tax provisions in 2009. However, at the difference of Poland which reacted very quickly after the summonses of the European executive power, France didn't seem to be eager to amend effectively its legislation.
The coming up evolution of the French tax provisions regarding dividends paid to foreign pension and investment funds should be appealing for French nationals wishing to distribute dividends to Luxembourg pension and investment funds.
This is without doubt a great opportunity for investors wishing to invest in France through a Luxembourg investment fund and for sure in any other European jurisdiction having similar discriminatory internal provisions.
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