Collectively the Same: Comparability of Investment Funds for Tax Purposes in the EU

This article examines the tax treatment of foreign and domestic investment funds in the European Union in light of the Court of Justice’s recent decision in F SA (C-18/23). The judgment addresses under which circumstances a foreign investment fund must be considered comparable to a domestic fund in order to qualify for corporate income tax regimes tailored for investment funds. The Court of Justice ruled that foreign investment funds cannot be excluded from tax benefits solely due to differences arising from commercial law. The article argues that comparability should be assessed based on the purpose of the tax exemption, which should not be confused with the purpose of the commercial law regulating investment funds. The purpose of the tax exemptions and benefits is the prevention of double taxation and the treatment of collective investments as direct investments. From that perspective, commercial law requirements may not be decisive. Drawing comparisons with other recent Court of Justice's judgments (e.g., in the cases UBS Real Estate, A SCPI, Franklin Mutual, and Deka), the author identifies a consistent judicial approach that should loosen the comparability requirement previously applied by Member States. The article further reflects on the potential implications for investment funds based in the EU and in third-countries, as well as the limits of national justifications based on investor protection or prevention of systemic risks. Ultimately, the case law of the Court of Justice underlines a more inclusive and factual interpretation of comparability in the internal market.