Germany: (Limited) Relief For Inbound Investments: Germany Adopts New Anti Treaty/Directive Shopping Rules

Last Updated: 14 November 2011
Article by Götz T. Wiese, Tobias Klass, Henrik Lay and Christian Möller

In the future the German Anti Treaty/ Directive Shopping Rules are likely to be less strict. On 27 October 2011, the German Parliament passed a bill on the implementation of the EU Mutual Assistance Directive (2010/24/LC) and other changes in tax law. Among the amendments, the German Anti Treaty/Directive Shopping Rules will be changed. These changes are of particular interest to investors with German inbound investments. It is to be expected that the Bundesrat, i.e., the second legislative chamber in Germany, which will have to explicitly consent to the bill, will be holding a vote on the bill prior to year-end.

The current Anti Treaty/ Directive Shopping Regime

Dividends of German corporations are generally subject to withholding tax at a rate of 26.375 percent. However, the European Parent Subsidiary Directive or Double Taxation Treaties may provide for a reduced withholding tax rate or an exemption from withholding tax.

Under the current German Anti Treaty/Directive Shopping Rules, these benefits only apply where a number of fairly restrictive conditions are satisfied. Both treaty and directive benefits are denied where the investor holds inbound investments through a foreign corporation and the investor would not be entitled to the tax/ directive benefits if it held its inbound investment directly and not all of the following three conditions are met (three-factors-test):

  • There must be economic or other non-tax-driven reasons for the interposition of the foreign corporation
  • The foreign corporation must generate more than 10 percent of its gross revenues from "own business activities" (including dividends received from an actively managed subsidiary)
  • The foreign corporation must actively engage in commerce with adequate business equipment (e.g., office, staff, communication devices, etc.)

Publicly listed foreign corporations, as well as regulated investment funds, are not subject to these restrictions.

The current German Anti Treaty/ Directive Shopping Rules require a thorough analysis of a foreign corporation with respect to the tax effects of its interposition between a German company and its (indirect) investor. There was uncertainty with regard to "management holdings" domiciled abroad, i.e., a holding that does not just passively hold the shares in the German company, but that actively engages in the management of its subsidiary. The dividends received by a management holding company are viewed as income from "own business activities" for purposes of the 10 percent threshold. In particular, it has always been difficult to draw the line between (active) management and other (passive) holding companies.

Infringement Procedure

On 18 March 2010, the European Commission initiated an infringement procedure against Germany. For obvious reasons, the Commission argued that the current German Anti Treaty/Directive Shopping Rules are in breach with European law since they are a clear override of the EU Parent Subsidiary Directive.

Amendments to the current Regime

The amendments to the German Anti Treaty/Directive Shopping regime adopted by the German Parliament on 27 October 2011 aim at bringing the law in line with EU law requirements.

As before, from 2012 forward, the German Anti Treaty/Directive Shopping regime only applies if and to the extent that indirect shareholders would not be entitled to treaty or directive benefits if they held the inbound investment directly.

Under the new regime, however, income from "own business activities" is generally not excluded from treaty or directive benefits.

As regards other income, an entitlement to treaty or directive benefits is available if a two-factors-test is passed:

  • There must be economic or other non-tax-driven reasons for the interposition of the foreign corporation
  • The foreign corporation must actively engage in general commerce with adequate business equipment (e.g., office, staff, communication devices, etc.)

As regards the first requirement – valid reasons for the interposition of the foreign corporation –, the legislator will add that such valid reasons must exist "with regard to such income", e.g., the dividend paid by the German company. The new rules discussed here should generally (against the EU law background dealt with above) provide for relief from the strictness of the existing Anti Treaty/Directive Shopping Rules. However, the addition "with regard to such income" to the first requirement of the two-factors-test might (partially) also have an opposite effect in certain circumstances in that it might encourage the tax administration to investigate whether there is a specific link between the foreign corporation and the shareholding in the German company or whether the shares were transferred to the foreign corporation arbitrarily. Also, the former 10 percent threshold is measured on the basis of gross revenues from any own business activities whereas under the new rules only income from own business activities as such is not excluded from treaty or directive benefits. As a result, it may turn out to be more difficult under the new rules to claim the status as entitled entity if the active business is somewhat unrelated to the German income


Notwithstanding those contrary effects in particular situations, the amendments outlined above generelly reduce the restrictions applying to inbound investments under the German Anti Treaty/Directive Shopping Rules. While the new law leaves room for interpretation, it does generally leave more room for tax-efficient repatriation of funds from German companies to foreign investors.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions