EU법상 자본이동의 자유와 투자펀드 배당 원천세 과세의 최근 동향 - 유럽사법재판소 판결을 중심으로

This article analyzes the impact of the principle of free movement of capital under EU law on withholding tax on dividends received by cross-border investment funds. Free movement of capital is a core principle prohibiting discrimination in cross-border investments in the EU. Since the Santander case, the ECJ has ruled that any discrimination in dividend withholding tax on foreign funds compared to domestic funds, despite the difference between residents or non-residents, constitutes a violation of this principle. This freedom of capital movement also applies to third country investors in principle. ECJ rulings on divident withholding tax regarding free movement of capital are ultimately adjudicated by EU member state courts, but the degree to which these courts accept the ECJ rulings varies among the EU member states. Consequently, some argue that a separate EU directive on the taxation of cross-border investment funds is needed. Korean investors can also claim withholding tax refunds within the EU based on the freedom of capital movement under EU law, and have actually received significant refunds. As such, EU tax law has significant implications for Korea, and active further research on this topic is in order.