Opinion of the Advocate General — ECLI:EU:C:2005:38
Date: 2005-01-20
Language of the case: Danish
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Taxation;Free movement of workers
Procedure: Action for failure to fulfil obligations - successful;Action for failure to fulfil obligations - unfounded
Origin: Denmark

Summary of the Judgment 1. Freedom of movement for persons — Workers — Treaty provisions — Scope — Legislation relating to the conditions in which an activity is carried on — Included (Art. 39 EC) 2. Freedom of movement for persons — Workers — Restrictions — Employees resident in the national territory and employed in another Member State — Prohibition on using a vehicle made available by the employer and registered in the Member State in which that employer is established — Not permitted — Authorisation to use such a vehicle subject to the condition that the employment is the principal employment of the employee and to payment of a tax — Not permitted (Art. 39 EC) 1. Legislation which relates to the conditions in which an economic activity is pursued may constitute an obstacle to freedom of movement for workers. Provisions which preclude or deter a national of a Member State from leaving his country of origin in order to exercise his right to freedom of movement constitute an obstacle to that freedom, even if they apply without regard to the nationality of the workers concerned, in so far as they affect access of workers to the labour market. The manner in which an activity is pursued is liable also to affect access to that activity. (see paras 35-37) 2. A Member State – which does not allow employees resident in its territory and employed in another Member State in work which is not their principal employment to use for business or private purposes a company vehicle registered in that other Member State where their employer’s undertaking is established, and – which allows employees resident in its territory and employed in another Member State to use for business purposes or business and private purposes a company vehicle registered in that other Member State in which their employer has its registered office or principal establishment, the vehicle neither being intended to be essentially used on the national territory on a permanent basis nor being actually so used, only on condition that the employment with that employer is their main employment and that a tax is paid for that purpose, fails to fulfil its obligations under Article 39 EC. (see para. 85, operative part 1)