In its landmark decision of September 11th, 2020, Ra 2020/13/0006, the Austrian Supreme Administrative Court found that the exclusion of third-country companies from a refund of withholding tax pursuant to the provisions of Austrian tax law (according to the wording of sec 21 para 1 subpara 1a Austrian Corporate Income Tax Act only EU/EEA claimants are entitled to apply for a WHT refund) constituted an unjustified restriction to the free movement of capital. The derogation from the prohibition on restrictions to the free movement of capital with non-EU countries (referred to as “standstill clause" or any other reasoning for a justified restriction) was not applicable at present.
