The CJEU judgment in the Emerging Markets Series case

Philip Baker QC

Viewed individually the various elements that make up the recent judgment of the CJEU in the Emerging Markets Series of DFA Investment Trust Company v Director of the Bydgoszcz Tax Authority (C-190/12) are not novel or innovative; to a large extent they represent established principles of the court’s jurisprudence. Cumulatively however they amount to a decision that may have wide implications for other EU member states (though perhaps less for the UK). It has been estimated that over $3bn of claims are outstanding against various member states on behalf of investment funds established outside the EU for repayment of excess withholding tax.

In this case the claimant was an investment fund with registered office in the US. It held portfolio shareholdings in Polish companies from which it received dividends in 2005...

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