A man makes donations to institutions in Germany and Switzerland. These institutions are recognised as charitable in their home countries, but have not applied for Dutch anbi status. The inspector therefore refuses the donation deduction. The man argues that the registration requirement violates the free movement of capital. According to him, foreign institutions cannot be required to apply for an anbi status in the Netherlands.
Registration condition
The man invokes the Persche judgment of the Court of Justice. He argues that the foreign institutions also meet the Dutch material conditions for an anbi status. Because of the laboriousness of the registration process, foreign institutions cannot reasonably be required to apply in the Netherlands. The registration requirement therefore constitutes an obstacle to the free movement of capital.
No distinction
The court rejected this argument. The law does not distinguish by place of establishment and the procedure is not unreasonably onerous. The Supreme Court ruled that the registration requirement does not legally distinguish by place of establishment. Both institutions established in the Netherlands and in other member states can apply to be classified as an anbi. Nor is there any indirect distinction. By its nature, the condition does not affect foreign institutions more than domestic institutions. The fact that the application procedure is laborious applies equally to Dutch institutions. The conditions imposed cannot be said to effectively exclude foreign institutions by making it impossible or extremely difficult for them to meet them. The Supreme Court sees no reason to ask preliminary questions.