CELEX: 62004CJ0290
Article 59 of the EEC Treaty (later Article 59 of the EC Treaty, now, after amendment, Article 49 EC) and Article 60 of the EEC Treaty (later Article 60 of the EC Treaty, now Article 50 EC)
Tax legislation
Income tax
Provision of services by a non-resident in the context of artistic performances
Principle of retention of tax at source
Provider of services not possessing the nationality of a Member State

This reference for a preliminary ruling relates to the interpretation of Article 59 of the EEC Treaty (later Article 59 of
the EC Treaty, now, after amendment, Article 49 EC) and Article 60 of the EEC Treaty (later Article 60 of the EC Treaty, now
Article 50 EC).
The reference was made in the course of proceedings between FKP Scorpio Konzertproduktionen GmbH (‘Scorpio’) and the Finanzamt
(Tax Office) Hamburg-Eimsbüttel concerning income tax to which that company was assessed in Germany for the year 1993.

Legal context

Community legislation
Article 58 of the EEC Treaty (subsequently Article 58 of the EC Treaty, which in turn became Article 48 EC) provides:
‘Companies or firms formed in accordance with the law of a Member State and having their registered office, central administration
or principal place of business within the Community shall, for the purposes of this Chapter, be treated in the same way as
natural persons who are nationals of Member States.
…’
Article 59 of the EEC Treaty provides:
‘Within the framework of the provisions set out below, restrictions on freedom to provide services within the Community shall
be progressively abolished during the transitional period in respect of nationals of Member States who are established in
a State of the Community other than that of the person for whom the services are intended.
The Council may, acting by a qualified majority on a proposal from the Commission, extend the provisions of the Chapter to
nationals of a third country who provide services and who are established within the Community.’
Under Article 60 of the EEC Treaty:
‘Services shall be considered to be “services” within the meaning of this Treaty where they are normally provided for remuneration,
in so far as they are not governed by the provisions relating to freedom of movement for goods, capital and persons.
“Services” shall in particular include:
(a) activities of an industrial character;
(b) activities of a commercial character;
(c) activities of craftsmen;
(d) activities of the professions.
Without prejudice to the provisions of the Chapter relating to the right of establishment, the person providing a service
may, in order to do so, temporarily pursue his activity in the State where the service is provided, under the same conditions
as are imposed by that State on its own nationals.’
Article 66 of the EEC (subsequently Article 66 of the EC Treaty, which in turn became Article 55 EC) Treaty reads:
‘The provisions of Articles 55 to 58 shall apply to the matters covered by this Chapter.’

National legislation
The German Law on Income Tax (Einkommensteuergesetz, ‘the EStG’), in the version of the Tax Amendment Law (Steueränderungsgesetz)
of 25 February 1992 (BGBl. 1992 I, p. 297), in force at the material time, provides in Paragraph 1(4) that natural persons
who are neither permanently nor ordinarily resident in Germany – apart from exceptions not arising in the case in the main
proceedings – have partial liability to income tax where they receive income in that Member State within the meaning of Paragraph
49 of the EStG. Under Paragraph 49(1)(2)(d) of the EStG, such income covers income from cultural, artistic or similar performances
in Germany, irrespective of the person receiving the earnings.
Paragraph 50a(4), first sentence, (1) of the EStG provides that, in the case of persons with partial liability to tax, the
tax on income of that kind is levied by means of retention at source. The retention amounts to 15% of the total receipts.
Under Paragraph 50a(4), third, fifth and sixth sentences, of the EStG, business expenses are not deductible. The value added
tax on the services provided in Germany by the person with partial tax liability also forms part of the income.
The income tax is payable when the payment is made to the creditor. At that time the payment debtor must, in accordance with
Paragraph 50a(5), first and second sentences, of the EStG, make the retention of tax at source for the account of the payment
creditor with partial liability to tax, the latter being the taxable person (tax debtor).
The payment debtor must pay to the competent Finanzamt the tax retained during the past quarter, and that payment must take
place at the latest by the tenth day of the month following that quarter. In accordance with Paragraph 50a(5), third and fifth
sentences, of the EStG, that debtor is responsible for retaining and paying the tax. Apart from exceptions which do not apply
in this case, the income tax of partially taxable persons is deemed, in view of the discharging effect of the retention at
source laid down by Paragraph 50(5) of the EStG, to have been paid once it is retained at source.
Paragraph 50d of the EStG lays down certain special rules for the case in which a convention for the avoidance of double taxation
applies.
Thus Paragraph 50d(1), first sentence, of the EStG provides that, where income subject to retention at source under Article
50a of the EStG cannot be taxed because of such a convention, the provisions relating to retention of tax at source by the
payment debtor must none the less be applied without prejudice to the convention. Only if the Bundesamt für Finanzen (Federal
Finance Office) certifies on application that the conditions laid down to that end by the convention for the avoidance of
double taxation are satisfied is the payment debtor, in accordance with the exemption procedure laid down in Paragraph 50d(3),
first sentence, of the EStG, not obliged to make the retention at source. In the absence of a certificate of exemption issued
by the Bundesamt für Finanzen, the payment debtor is required to make the retention.
Under Paragraph 50d(1), first sentence, of the EStG, the payment creditor does not, however, lose the rights to exemption
from tax granted him by the convention for the avoidance of double taxation. On the contrary, under Paragraph 50d(1), second
sentence, of the EStG, the tax retained and paid must be reimbursed to him, on application, to the extent provided for by
the convention.
Under Paragraph 50d(1), last sentence, of the EStG, where an action for liability is brought against the debtor for failing
to retain the tax at source, he cannot rely in those proceedings on the rights conferred on the payment creditor by a convention
for the avoidance of double taxation.
According to the information provided by the referring court, the income derived from the artistic performances at issue in
the main proceedings was not taxable in Germany but only in the Netherlands, by virtue of the Convention of 16 June 1959 between
the Federal Republic of Germany and the Kingdom of the Netherlands for the avoidance of double taxation in the area of income,
capital, and various other taxes and for regulating other tax matters (BGBl. 1960 II, p. 1782, ‘the Germany-Netherlands Convention’).
Finally, by way of comparison, the situation should be described of a provider of services who is permanently or ordinarily
resident in Germany and consequently is wholly liable to income tax in that Member State.
That provider of services is subject to the general obligation to make a declaration of income as part of the procedure for
assessing income tax. Since the debtor of the payment made to that service provider is not obliged to make a retention at
source, it is not possible for him to incur liability by reason of not having made such a retention. Nor can the payment debtor
be held liable for the income tax due from the payment creditor.

The main proceedings and the questions referred for a preliminary ruling
Scorpio, whose registered office is in Germany, is a company which organises concerts. In 1993 it concluded a contract with
a natural person trading under the name of Europop, who made a music group available to it. Europop was at that time established
in the Netherlands and was not permanently or ordinarily resident or established in Germany. The national court states that
it does not know Europop’s nationality.
In the first and third quarters of 1993, Scorpio paid Europop a total of DEM 438 600 for the services provided by Europop.
From that sum Scorpio did not make the retention of tax at source laid down in Paragraph 50a(4)(1), first sentence, of the
EStG, even though Europop had not presented to it the certificate of exemption mentioned in Paragraph 50d(3), first sentence,
of the EStG.
After learning of those facts, the competent tax authority called on Scorpio’s liability and, by a notice of assessment of
21 March 1997, demanded payment of the sum of DEM 70 395.30 representing the amount of tax which Scorpio should have retained
at source from the payment made to Europop, namely 15% of the gross amount of that payment.
Scorpio’s objection to the Finanzamt Hamburg-Eimsbüttel against that assessment notice was rejected. The Finanzgericht Hamburg
(Hamburg Finance Court), to which Scorpio then turned, also dismissed its application, since Scorpio had not presented the
certificate of exemption required by Paragraph 50d(3), first sentence, of the EStG.
Scorpio appealed on a point of law to the Bundesfinanzhof (Federal Finance Court), seeking to have the decision of the Finanzgericht
set aside and the contested notice of assessment annulled.
In support of its appeal, Scorpio argues, first, that Paragraph 50a(4), sixth sentence, of the EStG is contrary to Articles
59 and 60 of the EC Treaty in that it excludes the deduction of business expenses from the amount to be retained at source.
That, it says, follows from the judgment in Case C‑234/01
Gerritse
[2003] ECR I‑5933.
It argues, second, that the fact that it is prohibited by Paragraph 50d(1), fourth sentence, of the EStG from relying, as
the party whose liability may be incurred in accordance with Paragraph 50a(5), fifth sentence, of the EStG, on the tax exemption
to which the payment creditor – in this case Europop – is entitled under the Germany-Netherlands Convention is also contrary
to the EC Treaty.
The Bundesfinanzhof is uncertain as to how Articles 59 and 60 of the EC Treaty are to be interpreted with respect to the principle
of the retention of tax at source, and as to the extent of the action for liability brought by the Finanzamt on that basis.
It states that the outcome of the main proceedings depends inter alia on whether the interpretation of those articles would
be the same if Europop had not been a national of a Member State when he provided his services.
In those circumstances the Bundesfinanzhof decided to stay the proceedings and refer the following questions to the Court
for a preliminary ruling:
‘1.      Must Articles 59 and 60 of the EC Treaty be interpreted as meaning that they are infringed if a payment debtor established
in Germany of a payment creditor established in another State of the European Union (in this case: in the Netherlands), who
holds the nationality of a Member State, can be held liable under Paragraph 50a(5), fifth sentence, of the [EStG] 1990 in
the version in force in 1993, because he has failed to retain tax at source pursuant to Paragraph 50a(4) of the EStG, whereas
payments to a payment creditor who is wholly liable to income tax in Germany (a German) are not subject to any retention of
tax at source pursuant to Paragraph 50a(4) of the EStG and therefore no liability of the payment debtor for not making a retention
or not making a sufficient retention of tax at source can arise?
2.      Is the answer to Question 1 different if, at the time of providing his service, the payment creditor established in another
State of the European Union is not a national of a Member State?
3.      If the answer to Question 1 is in the negative:
(a)      Are Articles 59 and 60 of the EC Treaty to be interpreted as meaning that business expenses incurred by a payment creditor
established in another State of the European Union and economically connected with his activities in Germany giving rise to
the payments must be taken into account in reduction of tax by the payment debtor at the time of retaining tax at source pursuant
to Paragraph 50a(4) of the EStG, because Germans too are subject to income tax only on the net income remaining after deduction
of business expenses?
(b)      Is it sufficient for the purpose of avoiding an infringement of Articles 59 and 60 of the EC Treaty if, in retaining tax at
source pursuant to Paragraph 50a(4) of the EStG, only the business expenses economically connected with the activity in Germany
giving rise to the claim for payment and which the payment creditor established in another State of the European Union has
reported to the payment debtor are taken into account in reduction of tax, and any further business expenses can be taken
into account in a subsequent refund procedure?
(c)      Are Articles 59 and 60 of the EC Treaty to be interpreted as meaning that they are infringed if the tax exemption to which
a payment creditor established in the Netherlands is entitled in Germany under the [Germany-Netherlands Convention] is initially
disregarded in the retention of tax at source pursuant to Paragraph 50a(4) in conjunction with Paragraph 50d(1) of the EStG
and only allowed in a subsequent procedure for exemption or refund and the payment debtor is likewise not entitled to rely
on the tax exemption in proceedings concerning liability, whereas Germans’ tax-free income is not subject to any retention
of tax and therefore no liability for non-retention or insufficient retention of tax at source can arise either?
(d)      Are the answers to Questions 3(a) to (c) different if the payment creditor established in another State of the European Union
is not a national of a Member State at the time of providing his service?’

The questions
It should be noted at the outset that, as the facts at issue in the main proceedings took place before 1 November 1993, in
other words at a date before that of the entry into force of the Treaty on European Union signed at Maastricht on 7 February
1992, the interpretation asked for by the national court relates to Articles 59 and 60 of the EEC Treaty.

Question 1
By its first question the national court asks essentially whether Articles 59 and 60 of the EEC Treaty must be interpreted
as precluding national legislation under which a procedure of retention of tax at source is applied to payments made to providers
of services not resident in the Member State in which the services are provided, while payments made to providers of services
resident in that Member State are not subject to such a retention. The national court asks the Court to rule also on the corollary
of such legislation, namely the liability incurred by a recipient of services who has failed to make the retention at source
that he was required to make.
The legislation at issue in the main proceedings establishes a different tax system depending on whether the provider of services
is established in Germany or in another Member State.
It must be stated, first, that although direct taxation does not as such fall within the purview of the Community, the powers
retained by the Member States must nevertheless be exercised consistently with Community law (see, inter alia, Case C‑279/93
Schumacker
[1995] ECR I‑225, paragraph 21).
It should be recalled, next, that according to the Court’s case-law Article 59 of the EEC Treaty requires the abolition of
any restriction on the freedom to provide services imposed on the ground that the person providing a service is established
in a Member State other than the one in which the service is provided (Case 205/84
Commission
v
Germany
[1986] ECR 3755, paragraph 25, and Case C‑180/89
Commission
v
Italy
[1991] ECR I‑709, paragraph 15).
Finally, it is settled case-law that Article 59 of the EEC Treaty confers rights not only on the provider of services but
also on the recipient (see, in particular, Joined Cases 286/82 and 26/83
Luisi and Carbone
[1984] ECR 377; Case C‑204/90
Bachmann
[1992] ECR I‑249; Case C‑158/96
Kohll
[1998] ECR I‑1931; Case C‑224/97
Ciola
[1999] ECR I‑2517; and Case C‑294/97
Eurowings Luftverkehr
[1999] ECR I‑7447).
In the present case, as the referring court points out, the obligation on the recipient of services to make a retention at
source of the tax on the payment made to a provider of services residing in another Member State and the fact that that recipient
may in certain cases incur liability are liable to deter companies such as Scorpio from calling on providers of services residing
in other Member States.
It follows that legislation such as that at issue in the main proceedings constitutes an obstacle to the freedom to provide
services, prohibited in principle by Articles 59 and 60 of the EEC Treaty.
As the governments which have submitted observations and the Commission rightly submit, and as the Advocate General states
in his Opinion, such legislation is nevertheless justified by the need to ensure the effective collection of income tax.
The procedure of retention at source and the liability rules supporting it constitute a legitimate and appropriate means of
ensuring the tax treatment of the income of a person established outside the State of taxation and ensuring that the income
concerned does not escape taxation in the State of residence and the State where the services are provided. It should be recalled
that at the material time, in 1993, no Community directive or any other instrument referred to in the case-file governed mutual
administrative assistance concerning the recovery of tax debts between the Kingdom of the Netherlands and the Federal Republic
of Germany.
Moreover, the use of retention at source represented a proportionate means of ensuring the recovery of the tax debts of the
State of taxation.
The same is true of the potential liability of the recipient of services who is required to make such a retention, as that
enables the absence of retention at source to be penalised if necessary. Since that liability constitutes the corollary of
that method of collecting income tax, it too contributes in a proportionate manner to ensuring the effectiveness of collecting
the tax.
It follows that Articles 59 and 60 of the EEC Treaty must be interpreted as not precluding:
–        national legislation under which a procedure of retention of tax at source is applied to payments made to providers of services
not resident in the Member State in which the services are provided, whereas payments made to providers of services resident
in that Member State are not subject to such a retention;
–        national legislation under which liability is incurred by a recipient of services who has failed to make the retention at
source that he was required to make.

Question 2
Since this question is based on the same premiss as Question 3(d), namely that the payment creditor is a national of a non-member
country, it will be examined together with that question.

Question 3(a)
The Bundesfinanzhof asks the Court whether Articles 59 and 60 of the EEC Treaty must be interpreted as precluding national
legislation which does not allow a recipient of services who is the debtor of the payment made to a non-resident provider
of services to deduct, when making the retention of tax at source, the business expenses of that service provider which are
economically connected with his activities in the Member State in which the services are provided, whereas a provider of services
residing in that State is taxable only on his net income, that is, the income received after deduction of business expenses.
The Court has already had occasion to rule on whether Articles 59 and 60 of the EC Treaty preclude national tax legislation
which as a general rule takes into account gross income when taxing non-residents, without deducting business expenses, whereas
residents are taxed on their net income, after deduction of those expenses (
Gerritse
, paragraph 55).
In
Gerritse
the Court first found that the business expenses in question in that case were directly linked to the activity that had generated
the taxable income, so that residents and non-residents were placed in a comparable situation in that respect. It then answered
in the affirmative the question referred to it for a preliminary ruling, holding that a national provision which, in matters
of taxation, refuses to allow non-residents to deduct business expenses, whereas residents are allowed to do so, constitutes
indirect discrimination on grounds of nationality, contrary in principle to Articles 59 and 60 of the EC Treaty. It did not,
however, rule on the question of the stage of the taxation procedure at which the business expenses incurred by a provider
of services must be deducted, in a case where several different stages are possible.
In order to provide the referring court with a useful answer, the concept of ‘economically connected business expenses’ must
therefore be understood as referring to expenses that are directly linked, within the meaning of the line of case-law starting
with
Gerritse
, to the economic activity that generated the taxable income.
The Bundesfinanzhof thus wishes to know whether Articles 59 and 60 of the EEC Treaty likewise preclude national tax legislation
which does not allow business expenses to be deducted from taxable income at the time when the payment debtor makes the retention
at source of the tax, but gives a non-resident the possibility of being taxed on the basis of his net income in Germany in
a procedure following, at his request, the procedure of retention at source, and of thus obtaining a refund of any difference
between that amount and that of the retention at source.
Starting from the Bundesfinanzhof’s premiss, namely the existence at the material time of a refund procedure in which the
business expenses of a non-resident provider of services could be taken into account subsequently, it should be recalled that,
according to settled case-law of the Court, the application of the host Member State’s national rules to providers of services
is liable to prohibit, impede or render less attractive the provision of services to the extent that it involves expense and
additional administrative and economic burdens (see Case C‑165/98
Mazzoleni and ISA
[2001] ECR I‑2189, paragraph 24, and Joined Cases C‑49/98, C‑50/98, C‑52/98 to C‑54/98 and C‑68/98 to C‑71/98
Finalarte and Others
[2001] ECR I‑7831, paragraph 30).
In the case at issue in the main proceedings, the obligation, even where the non-resident provider of services has informed
his payment debtor of the amount of his business expenses directly linked to his activity, to commence a procedure for the
subsequent refund of those expenses is liable to impede the provision of services. In that commencing such a procedure involves
additional administrative and economic burdens, and to the extent that the procedure is inevitably necessary for the provider
of services, the tax legislation in question constitutes an obstacle to the freedom to provide services, prohibited in principle
by Articles 59 and 60 of the EEC Treaty.
No argument has been advanced to justify the national legislation at issue in the main proceedings, in so far as it does not
allow a recipient of services who is the debtor of the payment made to a non-resident provider of services to deduct, when
making the retention of tax at source, the business expenses directly linked to the activity of the non-resident provider
of services in the Member State in which the services are provided, if the provider of services has reported them to him.
The answer to Question 3(a) must therefore be that Articles 59 and 60 of the EEC Treaty must be interpreted as precluding
national legislation which does not allow a recipient of services who is the debtor of the payment made to a non-resident
provider of services to deduct, when making the retention of tax at source, the business expenses which that service provider
has reported to him and which are directly linked to his activity in the Member State in which the services are provided,
whereas a provider of services residing in that State is taxable only on his net income, that is, the income received after
deduction of business expenses.

Question 3(b)
By this question, which is linked to the preceding one, the Bundesfinanzhof essentially asks whether Articles 59 and 60 of
the EEC Treaty must be interpreted as not precluding national legislation under which only the business expenses directly
linked to activities in the Member State in which the service is provided, which the service provider established in another
Member State has reported to the payment debtor, are deducted in the procedure for retention at source, and any further business
expenses can be taken into account in a subsequent refund procedure.
This question must be answered in the light of the considerations on the previous question and bearing in mind the fact that
the Court does not have the material to make a comparison between the situations of resident and non-resident providers of
services. While the expenses which the provider of services has reported to his debtor must be deducted in the procedure for
the retention of tax at source, Articles 59 and 60 of the EEC Treaty do not preclude the taking into account if appropriate
of expenses that are not directly linked, within the meaning of the
Gerritse
line of case-law, to the economic activity that generated the taxable income, in a subsequent refund procedure.
The answer to Question 3(b) must therefore be that Articles 59 and 60 of the EEC Treaty must be interpreted as not precluding
national legislation under which only the business expenses directly linked to the activity that generated the taxable income
in the Member State in which the service is provided, which the service provider established in another Member State has reported
to the payment debtor, are deducted in the procedure for retention at source, and expenses that are not directly linked to
that economic activity can be taken into account if appropriate in a subsequent refund procedure.

Question 3(c)
By this question the Bundesfinanzhof asks the Court whether Articles 59 and 60 of the EEC Treaty must be interpreted as precluding
a rule that the tax exemption granted under the Germany-Netherlands Convention to a non-resident provider of services who
has carried on activity in Germany can be taken into account by the payment debtor in the procedure for retention of tax at
source, or in a subsequent procedure for exemption or refund, or, in the circumstances referred to in paragraph 21 above,
in proceedings for liability brought against him, only if a certificate of exemption stating that the conditions laid down
to that end by that convention are satisfied is issued by the competent tax authority.
It should be recalled, first, that, according to settled case-law, in the absence of unifying or harmonising measures adopted
by the Community, the Member States remain competent to determine the criteria for taxation of income and wealth with a view
to eliminating double taxation by means inter alia of international agreements (see Case C‑307/97
Saint-Gobain
[1999] ECR I‑6161, paragraph 57).
However, as far as the exercise of the power of taxation so allocated is concerned, the Member States are obliged to comply
with Community rules (see, to that effect,
Saint-Gobain
, paragraph 58; Case C‑385/00
De Groot
[2002] ECR I‑11819, paragraph 94; and Case C‑265/04
Bouanich
[2006] ECR I‑923, paragraph 50).
Although, as indicated in paragraph 15 above, the income derived from the artistic services at issue in the main proceedings
was taxable not in Germany but only in the Netherlands under the Germany-Netherlands Convention, it must be stated, as the
Advocate General observes in point 88 of his Opinion, that the obligation imposed on a provider of services residing in the
Netherlands to request the competent German tax authority to issue a certificate of exemption in order to escape additional
tax on his income in Germany constitutes, as pointed out in paragraph 49 above, a restriction on the freedom to provide services,
because of the administrative steps that it requires the service provider to take.
Similarly, the obligation imposed on the recipient of services to produce that certificate of exemption in proceedings for
liability brought against him is liable to deter him from calling on a provider of services established in another Member
State. As Scorpio submits, the payment debtor has to make sure that his contracting partner has either personally initiated
the procedure for exemption or refund (and, in the latter case, pays him the amount of the refund) or else given him authorisation
to start that procedure on his behalf. There is a risk that a provider of services established in another Member State will
not be interested in taking those steps or will no longer be available once the contractual relationship has come to an end.
Consequently, the fact that the tax exemption in question can be taken into account, at the various stages of the taxation
procedure mentioned by the Bundesfinanzhof, only on production of a certificate issued by the competent tax authority stating
that the conditions laid down to that end by the Germany-Netherlands Convention are satisfied constitutes an obstacle to the
freedom to provide services guaranteed by Articles 59 and 60 of the EEC Treaty.
That obstacle is, however, justified in order to ensure the proper functioning of the procedure for taxation at source.
As the Belgian Government inter alia argues and as the Advocate General states in point 90 of his Opinion, it appears to be
important that the payment debtor can refrain from retaining tax at source only if he is certain that the provider of services
satisfies the conditions for an exemption. The payment debtor cannot be required himself to clarify whether or not, in each
individual case, the income in question is exempt under a convention for the avoidance of double taxation. Finally, authorising
the payment debtor unilaterally to refrain from retaining the tax at source could, in the event of an error on his part, have
the effect of compromising the collection of the tax from the payment creditor.
In the light of the above considerations, the answer to Question 3(c) must be that Articles 59 and 60 of the EEC Treaty must
be interpreted as not precluding a rule that the tax exemption granted under the Germany-Netherlands Convention to a non-resident
provider of services who has carried on activity in Germany can be taken into account by the payment debtor in the procedure
for retention of tax at source, or in a subsequent procedure for exemption or refund, or in proceedings for liability brought
against him, only if a certificate of exemption stating that the conditions laid down to that end by that convention are satisfied
is issued by the competent tax authority.

Question 2 and Question 3(d)
By these questions the Bundesfinanzhof essentially asks whether Article 59 of the EEC Treaty must be interpreted as being
applicable if the recipient of services, who relies on that article in order to benefit from the freedom to provide services
within the Community, is a national of a Member State and established within the Community, and his contracting partner, the
provider of services, is established in another State of the Community but is a national of a non-member country.
It should be recalled that, as stated in paragraph 32 above and in accordance with settled case-law, Article 59 of the EEC
Treaty confers rights not only on the provider of services but also on the recipient.
While those rights include the freedom for recipients of services to go to another Member State in order to receive a service
there without being obstructed by restrictions (
Ciola
, paragraph 11, and Case C‑55/98
Vestergaard
[1999] ECR I‑7641, paragraph 20), it is also apparent from settled case-law of the Court that the recipient of services may
rely on those rights even if neither he nor the service provider moves within the Community (see, to that effect,
Eurowings Luftverkehr
, paragraph 34; Case C‑243/01
Gambelli and Others
[2003] ECR I‑13031, paragraphs 55 and 57; and Case C‑36/02
Omega
[2004] ECR I‑9609, paragraph 25).
That is the case in the main proceedings. The United Kingdom Government’s argument that Scorpio, as the recipient of services,
cannot benefit from the freedoms guaranteed in Article 59 of the EEC Treaty since it did not go or seek to go to another Member
State to be provided with the service at issue in the main proceedings cannot therefore be accepted.
While it follows from the above considerations that Scorpio, which, as a company or firm within the meaning of the first paragraph
of Article 58 of the EEC Treaty, is treated in the same way as a natural person who is a national of a Member State, should
in principle be able, pursuant to Article 66 of the EEC Treaty, to rely on the rights conferred on it by Article 59 of the
EEC Treaty, it must be examined whether the fact that Europop, as a provider of services established in another Member State,
is a national of a non-member country precludes Scorpio from relying on those rights.
On this point, the EEC Treaty states, since the Council has not made use of the possibility provided for in the second paragraph
of Article 59 thereof, that the provisions governing the freedom to provide services apply if the following conditions are
satisfied:
–        the service must be provided within the Community;
–        the provider of services must be a national of a Member State and established in a State of the Community.
It follows that the EEC Treaty does not extend the benefit of those provisions to providers of services who are nationals
of non-member countries, even if they are established within the Community and an intra-Community provision of services is
concerned.
Consequently, the answer to Question 2 and Question 3(d) must be that Article 59 of the EEC Treaty must be interpreted as
not being applicable in favour of a provider of services who is a national of a non-member country.

Costs
Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court,
the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs
of those parties, are not recoverable.
On those grounds, the Court (Grand Chamber) hereby rules:
1.
Articles 59 and 60 of the EEC Treaty must be interpreted as not precluding
–
national legislation under which a procedure of retention of tax at source is applied to payments made to providers of services
not resident in the Member State in which the services are provided, whereas payments made to providers of services resident
in that Member State are not subject to such a retention;
–
national legislation under which liability is incurred by a recipient of services who has failed to make the retention at
source that he was required to make.
2.
Articles 59 and 60 of the EEC Treaty must be interpreted as
–
precluding national legislation which does not allow a recipient of services who is the debtor of the payment made to a non-resident
provider of services to deduct, when making the retention of tax at source, the business expenses which that service provider
has reported to him and which are directly linked to his activity in the Member State in which the services are provided,
whereas a provider of services residing in that State is taxable only on his net income, that is, the income received after
deduction of business expense;
–
not precluding national legislation under which only the business expenses directly linked to the activity that generated
the taxable income in the Member State in which the service is provided, which the service provider established in another
Member State has reported to the payment debtor, are deducted in the procedure for retention at source, and expenses that
are not directly linked to that economic activity can be taken into account if appropriate in a subsequent refund procedure;
–
not precluding a rule that the tax exemption granted under the Convention of 16 June 1959 between the Federal Republic of
Germany and the Kingdom of the Netherlands for the avoidance of double taxation in the area of income, capital, and various
other taxes and for regulating other tax matters, to a non-resident provider of services who has carried on activity in Germany
can be taken into account by the payment debtor in the procedure for retention of tax at source, or in a subsequent procedure
for exemption or refund, or in proceedings for liability brought against him, only if a certificate of exemption stating that
the conditions laid down to that end by that convention are satisfied is issued by the competent tax authority.
3.
Article 59 of the EEC Treaty must be interpreted as not being applicable in favour of a provider of services who is a national
of a non-member country.
[Signatures]
*
Language of the case: German.