Opinion of the Advocate General — ECLI:EU:C:2006:596
Date: 2006-09-21
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Citizenship of the Union;Right of entry and residence;Right of establishment;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Germany

summary of the facts) provide services within the meaning of Article 50 EC and are therefore largely privately funded and intend to make an economic profit; otherwise, the fundamental freedom would not be applicable. (25) 48. The necessary comparability is not in any case established by the fact that the domestic schools assisted under Paragraph 10(1)(9) of the EStG, as is clear from the reference to Paragraph 7(4) of the Basic Law, are private organisations, like the relevant foreign schools, and not State schools. Despite their private constitution, these domestic schools cannot generally charge fees in order to cover their costs since they are subject to the prohibition on segregation of pupils according to the means of their parents. An entitlement to considerable State assistance is specifically the result of this situation. In the case of the ‘alternative schools approved by the State’ this follows directly from Paragraph 7(4), third sentence, of the Basic Law and for the other schools covered by Paragraph 10(1)(9) of the EStG it can stem from the relevant authorisation or recognition under the law of the Länder. 49. One cannot, however, rule out the possibility that there may be domestic schools that both are service providers within the meaning of Article 49 EC et seq. and satisfy the material requirements laid down in Paragraph 10(1)(9) of the EStG and therefore fulfil the condition of comparability, as was clear from the examples cited at the hearing. 50. Whilst this is not the normal case, it is perfectly possible in the two scenarios described below. First of all, payments of school fees lying below the threshold of the prohibition on segregation may be supplemented by donations from private institutions (26) to the extent that the school may operate commercially. Secondly, in exceptional cases a school may also be financed primarily from fees and nevertheless be eligible for assistance under Paragraph 10(1)(9) of the EStG, since that provision does not require absolutely that the schools covered be supported primarily from the public purse. 51. As far as the first variant is concerned, reference can be made to the possibility of private mixed financing of a private school from fees and payments by private institutions in order to reach the point where costs are covered. (27) Nor is this precluded by the fact that the school is supported only in part by students or parents. As can be seen from the abovementioned judgments in Humbel and Wirth, remunerative nature for the purposes of Article 50 EC requires private financing only ‘in particular’ by pupils or their parents. (28) If such remunerative nature is to exist, it is therefore sufficient for payments of school fees to cover a significant proportion of the financing requirement and to be supplemented by further payments by other private parties, such as support associations, which are sustained to a sizeable extent by donations from parents. It is ultimately crucial that financing is not essentially from State payments. (29) This is also consistent with the Court’s case-law in other areas under Article 49 EC, according to which it is not important that the service is paid for by the person for whom it is performed. (30) 52. As regards the second variant, an alternative school financed largely by school fees is ruled out under Paragraph 7(4)(3) of the Basic Law. However, the prohibition on segregation and therefore the entitlement to State assistance apply constitutionally only to such alternative schools and certainly do not apply to the complementary schools also covered by Paragraph 10(1)(9) of the EStG under the wording of that provision, (31) from which follows at least the possibility of such complementary schools being largely privately financed. 53. It cannot be inferred on this basis alone that complementary schools financed largely from fees are also given preferential tax treatment in general, since a further requirement for preferential treatment is recognition under the law of the Länder. According to the German Government, using that instrument it is possible for the Bundesländer to subject complementary schools to a legal regime similar to that for alternative schools approved by the State. It is apparent from the communication from the Federal Government of 26 August 2002 in the Treaty infringement proceedings (32) and the examples cited by the applicant in the main proceedings that this has not entirely been the case. 54. Furthermore, in this connection, the view taken by the Federal German Government that it is not sufficient for the comparability required above for only some of the domestic private schools which are given preferential treatment to be financed from fees cannot be supported by means of the references cited by it for that purpose. (33) 55. In so far as Advocate General Sir Gordon Slynn (34) takes the view that the classification of education provided by the State as non-commercial is not affected by the fact that the service recipients are required to pay a charge, which is usually negligible, but exceptionally may almost cover the costs of the services, this could support the German Government’s view. However, it is a general statement which has no bearing on the issue of comparability which is relevant in this instance. 56. The finding that a school which is financed by the State in principle, but which exceptionally receives private funding, does not thereby lose its character as an institution operating without remuneration cannot therefore really be applied to the present issue of comparability. In particular, it cannot be concluded from this that predominantly privately financed schools are not to be regarded as private schools solely on the ground that the majority of schools given preferential tax treatment are subsidised by the State. 57. Lastly, the Court’s case-law according to which discrimination is sufficient for a finding of prohibited differentiation only in certain cases also militates against the view taken by the German Government. (35) 58. Paragraph 10(1)(9) of the EStG must therefore be regarded as discriminatory in so far it makes the preferential tax treatment of certain private schools inherent in it dependent on the place of establishment of those schools and therefore also differentiates between schools that are otherwise comparable. This means that there is an infringement of Article 49 EC. c) Justification 59. In order to justify the discrimination, it is argued with reference to the judgment in Bidar (36) that the Court recognises it as legitimate for a Member State to lay down criteria for the grant of assistance to cover the maintenance costs of students (the same must apply to the grant of a tax advantage), which prevent the assistance (or the advantage) having to be reduced below a level which the Member State considers to be necessary. In the view of the Federal German Government, this should be seen against the background that, where there are limited State funds, the quantitative extension of a tax advantage must lead to the reduction of the level of the individual preferential treatment in order to ensure revenue neutrality. The German Government thus essentially relies on the additional financial burden on the national budget if Paragraph 10(1)(9) of the EStG is also to apply to payments of school fees to certain foreign schools. 60. However, that objection is not without problems. As the Court has consistently held, shortfalls in tax revenue are neither among the grounds referred to in Article 46 EC in conjunction with Article 55 EC, nor are they to be taken into consideration as matters of overriding general interest. (37) In so far as the Federal German Government regards the extension of the tax deductibility of payments of school fees to certain foreign schools as problematical, because it leads to shortfalls in tax revenue, there appears to be no justification for the abovementioned breach of the principle of freedom to provide services. 61. It is also uncertain whether the Court’s findings in Bidar are applicable to the grant of tax advantages in connection with the fundamental freedoms under the EC Treaty. This question could be left open, however, if the objective pursued through the exclusion of foreign schools from preferential tax treatment under Paragraph 10(1)(9) of the EStG, namely to cover costs in accordance with the judgment in Bidar, could in any case be achieved by less onerous means, in keeping with the principle of proportionality. 62. As is clear from the statements made by the German Government, the excessive financial burden if deductibility were extended to certain foreign schools results specifically from the fact that the amounts of assistance for those schools would be much higher than for domestic educational establishments since the former would have to finance themselves through high school fees. In order to prevent this, however, a Member State is not prevented under Community law, as a less onerous, equally effective means, from limiting the deductibility of school fees for domestic and foreign schools to a certain level (based on existing national values). It is therefore possible for it to avoid an escalation in total expenditure, whilst at the same time granting the assistance which it regards as appropriate in an individual case and not excluding foreign schools. The total exclusion of foreign schools under Paragraph 10(1)(9) of the EStG thus appears to be disproportionate in any case, with the result that the initial question of whether the Bidar judgment may be applied can remain open. 63. There is no evident further justification for discrimination against foreign schools. (38) In this connection, the Commission also points out that under Article 149(2) EC dissemination of the languages of the Member States and encouraging mobility of students are to be regarded as aims of the Community. d) Conclusion 64. The answer to the question referred by the Finanzgericht Köln (Case C‑76/05) must therefore be that Article 49 EC is to be interpreted as meaning that passive freedom to provide services precludes a national provision under which payments of school fees to certain domestic schools, but not payments of school fees to schools in the rest of European Community territory are tax deductible. As Community law stands at present, the national legislator is free to limit the level of preferential tax treatment for private schools or to lay down objective criteria for determining whether such schools are eligible for assistance. IV – Treaty infringement proceedings (Case C‑318/05) A – Pre-litigation procedure and judicial proceedings 65. By a letter of formal notice of 19 July 2002, the Commission informed the Federal Government for the first time of its reservations regarding the compatibility of Paragraph 10(1)(9) of the EStG with Community law. With reference to the special character of the German private schools which form part of the State schools system, the Federal Government replied by a communication of 26 August 2002, stating that preferential treatment accorded to certain domestic schools did not infringe the EC Treaty. 66. Whilst maintaining its view, on 9 January 2004 the Commission delivered a reasoned opinion, whereupon the Federal Government announced at first that it intended to repeal Paragraph 10(1)(9) of the EStG. By a subsequent communication of 3 February 2005, however, it revealed to the Commission that it was not possible to secure a majority for the repeal of the abovementioned provision. 67. After subsequent discussions were unsuccessful, on 16 August 2005 the Commission brought an action before the Court of Justice. 68. The Commission claims that the Court should: – declare that, by excluding payments of school fees in respect of attendance at a school abroad without exception from the deduction of special expenditure provided for in Paragraph 10(1)(9) of the EStG, the Federal Republic of Germany has failed to fulfil its obligations under Articles 18 EC, 39 EC, 43 EC and 49 EC; – order the Federal Republic of Germany to pay the costs. B – Main arguments of the parties 69. In the view of the Commission, Paragraph 10(1)(9) of the EStG infringes Article 49 EC. First of all, passive freedom to provide services is affected. Reference can be made in this respect to the Commission’s arguments in the preliminary ruling proceedings (Case C‑76/05). (39) In this connection, the Commission also points out that the private organisation of the schools assisted under the contested rule in itself suggests that a service is provided for remuneration. 70. Nor does the German Government’s objection, described in point 18 above, have any relevance to an infringement of Article 49 EC. Paragraph 10(1)(9) of the EStG does not lay down any objective criteria making it possible to determine under what circumstances school fees payable to German and foreign schools are deductible. 71. Secondly, going beyond the facts in the main proceedings in Case C‑76/05, active freedom to provide services is also infringed in the present case. As a result of the preferential tax treatment accorded to domestic schools, it is made more difficult for foreign private schools to offer their services successfully in Germany. 72. Furthermore, in the opinion of the Commission, Articles 39 EC, 43 EC and 18 EC are also infringed. This concerns both employed persons from other EC countries, self-employed persons who have become established and parents who have moved to Germany for private reasons and who continue their children’s school education in their country of origin, on the one hand, and German parents who, because they move to another Member State, send their children to a private school there, on the other. 73. In addition, there is also an infringement of the freedom of establishment of the foreign private schools concerned. Paragraph 10(1)(9) of the EStG requires them to be established in the Federal Republic in order not to be discriminated against in competition with German schools. 74. Lastly, the exclusion of tax relief in respect of attendance at foreign schools is contrary to Article 10 EC in conjunction with the Community aim referred to in Article 149(2) EC. 75. The German Government, on the other hand, takes the view that there is no infringement of Community law. With regard to Article 49 EC, reference can be made to its arguments in the preliminary ruling proceedings (Case C‑76/05). Furthermore, it is argued in the defence that German schools in other EC countries may also be covered by Paragraph 10(1)(9) of the EStG. 76. Articles 18 EC, 39 EC and 43 EC are not infringed either, since the legal consequence of recognition of an infringement of Community law – that is to say the tax deductibility of school fees paid to foreign schools – is not consistent with the fact that the organisation of the education system does not as such fall within the competence of the Community organs. C – Assessment 1. The alleged infringement of freedom to provide services 77. The subject-matter of the Treaty infringement proceedings is the same national rule as in the preliminary ruling proceedings, namely Paragraph 10(1)(9) of the EStG. 78. The above arguments concerning the scope of application of Article 49 EC (40) and concerning the infringement of Article 49 EC on account of the discriminatory character of the national rule in question in the preliminary ruling proceedings (Case C‑76/05) (41) may be applied in the present case. 79. Going beyond passive freedom to provide services, however, (active) freedom to provide services for private schools established in other EC countries is itself also affected. Preferential tax treatment of domestic private schools makes it difficult for foreign schools to offer their services in Germany successfully. 80. The infringement of freedom to provide services stemming from Paragraph 10(1)(9) of the EStG is not justifiable, however. (42) 81. It must therefore be stated that through Paragraph 10(1)(9) of the EStG the Federal Republic of Germany has infringed active and passive freedom to provide services under Article 49 EC. 2. The alleged infringement of freedom of movement for workers and freedom of establishment (Articles 39 EC and 43 EC) 82. Unlike in Case C‑76/05, in the Treaty infringement proceedings (Case C‑318/05) it must also be examined whether Paragraph 10(1)(9) of the EStG infringes Articles 39 EC and 43 EC. 83. Paragraph 10(1)(9) of the EStG in particular discriminates against employed persons and self-employed persons who have moved to Germany or have their place of work there and their children continue to attend a fee-paying school in another Member State. Resident employed persons are subject to unlimited income tax liability under Paragraph 1(1)(1) of the EStG. The same may also apply to simple frontier workers who have their place of work in Germany, but do not live there. Under Paragraph 1(3) of the EStG they are also subject to unlimited income tax liability upon request. Paragraph 10(1)(9) of the EStG bars those persons from making a special tax deduction for a proportion of the school fees to be paid, unlike in the case of attendance at a school established in Germany, and thus causes discrimination that is liable to deter them also from availing themselves of their rights under Articles 39 EC and 43 EC in the future. 84. Conversely, Paragraph 10(1)(9) of the EStG is also liable to discriminate against German nationals where they move to another Member State and their children attend a fee-paying school there. As a rule, when they move away from the Federal Republic, they are no longer liable to pay tax there, with the result that discrimination on the basis of German tax provisions is ruled out. However, this does not apply to civil servants working abroad under Paragraph 1(2) of the EStG or to German EU officials pursuant to Article 14 of the Protocol on the Privileges and Immunities of the European Communities of 8 April 1965. (43) If their children attend fee-paying schools abroad – but not German Schools Abroad and European Schools (44) – Paragraph 10(1)(9) of the EStG bars the parents from making tax deductions in respect of the school fees paid. 85. In so far as Paragraph 10(1)(9) of the EStG makes the tax deductibility of school fees dependent on the place of establishment of the school, on the other hand, this does not directly impair the freedom of establishment of foreign private schools – that are excluded from tax advantages – which would have to be established in Germany in order to be given preferential tax treatment; this is in fact the reverse side of the impairment of its passive freedom to provide services. 86. The cases of discrimination highlighted cannot be justified either. (45) 87. It must therefore be stated that by excluding the tax deductibility of payments of school fees to foreign schools under Paragraph 10(1)(9) of the EStG the Federal Republic of Germany has also infringed Articles 39 EC and 43 EC. 3. The alleged infringement of the general right to freedom of movement (Article 18(1) EC in conjunction with the first paragraph of Article 12 EC) a) Scope of application 88. First of all, it is uncertain whether – as in the preliminary ruling proceedings (Case C-76/05) (46) – the first paragraph of Article 12 EC and Article 18(1) EC are rendered inapplicable simply on the ground that precedence should be given to a more specific provision of Community law. Where, as the Commission argues, parents exercise their right to freedom of movement indirectly by sending their children to a school in another Member State, such a situation generally falls within the scope of application of (passive) freedom to provide services under Article 49 EC et seq. and also within the scope of Case C‑76/05. 89. The Commission further argues that, in any event, going beyond the circumstances that form the basis for Case C‑76/05, the situation of nationals from other EC countries who have moved to Germany for private reasons and who leave their children in private schools in their country of origin also falls within the scope of application of Article 18(1) EC in conjunction with the first paragraph of Article 12 EC. 90. That argument must be upheld. Where foreign parents move to the Federal Republic of Germany for purely private reasons, they exercise their general right to freedom of movement (Article 18(1) EC) if they do not take on any employment in Germany. (47) Nevertheless, it cannot be ruled out that they could be assessed for income tax purposes on the basis of other income. 91. Nor are the first paragraph of Article 12 EC and Article 18(1) EC rendered inapplicable on the ground that in such a case no economic activity is carried on in another Member State. (48) Under Article 12 EC, the situation must fall ‘within the scope of application of the Treaty’. In earlier judgments the Court has stated that only rules concerning access to vocational training fall within the scope of application of the Treaty. (49) However, Paragraph 10(1)(9) of the EStG gives preferential treatment to German private schools of any kind – i.e. including, and above all, schools providing a general education. However, since those judgments were given, the Treaty on European Union has introduced citizenship of the Union into the EC Treaty and added to Title VIII (now Title XI) of Part Three a Chapter 3 devoted inter alia to education and vocational training, as a result of which the scope of the Treaty has been expanded. For that reason, according to settled case-law, a citizen of the European Union lawfully resident in the territory of the host Member State can now rely on Article 12 EC in all situations which fall within the scope ratione materiae of Community law. (50) Those situations include those involving the exercise of the fundamental freedom to move and reside within the territory of the Member States, as conferred by Article 18 EC. (51) 92. Tax advantages for payments of school fees to schools providing a general education may therefore also fall ‘within the scope of application’ of the first paragraph of Article 12 EC and Article 18(1) EC. b) Discrimination 93. It follows from the first paragraph of Articles 12 EC and Article 18(1) EC that parents whose children attend a school in another EC country are entitled to be treated in the same way as nationals. (52) That principle is infringed by a national tax rule under which – as has already been shown with regard to Article 49 EC in Case C‑76/05 (53) – parents are automatically more heavily taxed because their children attend a foreign private school. c) Justification 94. In this respect too, reference may be made to the arguments on freedom to provide services in Case C-76/05. (54) No reliance on the division of powers established by the Treaty can justify another conclusion. Education and vocational training are the responsibility of the Member States in principle. (55) However, as is shown by the abovementioned Article 149(2) EC, this does not relieve the Member States entirely of the obligation to have regard to the rules of Community law in the context of education measures. d) Conclusion 95. It must therefore be stated that by excluding the tax deductibility of payments of school fees to foreign schools under Paragraph 10(1)(9) of the EStG the Federal Republic of Germany has also infringed Article 12 EC in conjunction with Article 18 EC. 4. Costs 96. Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission has applied for costs and the Federal Republic of Germany has been unsuccessful, the latter must be ordered to pay the costs. V – Conclusion 97. In Case C‑76/05 it is proposed that the question referred by the Finanzgericht Köln be answered to the effect that: Article 49 EC is to be interpreted as meaning that passive freedom to provide services precludes a national provision under which payments of school fees to certain domestic schools, but not payments of school fees to schools in the rest of the territory of the European Community are tax deductible. However, as Community law stands at present, the national legislator is free to limit the level of preferential tax treatment for private schools or to lay down objective criteria for determining whether such schools are eligible for assistance. 98. In Case C‑318/05 it is proposed that the Court should: – declare that, by excluding payments of school fees in respect of attendance at a school abroad without exception from the deduction of special expenditure provided for in Paragraph 10(1)(9) of the EStG, the Federal Republic of Germany has failed to fulfil its obligations under Article 12 EC in conjuction with Articles 18 EC, 39 EC, 43 EC and 49 EC; – order the Federal Republic of Germany to pay the costs. 1 – Original language: German. 2 – See inter alia Case C-204/90 Bachmann [1992] ECR I‑249, paragraph 23. 3 – Case C-319/92 Manninen [2004] ECR I‑7477, paragraph 19, Case C-315/02 Lenz [2004] ECR I‑7063, paragraph 19, Case C-136/00 Danner [2002] ECR I‑8147, paragraph 28, and Case C‑118/96 Safir [1998] ECR I‑1897, paragraph 21. 4 – See Case C-147/03 Commission v Austria [2005] ECR I‑5969, paragraph 31 et seq. According to the judgment in that case, contrary to the view taken by the Austrian Federal Government, a national rule on the recognition of secondary education diplomas for the purpose of gaining access to Austrian universities does fall within the scope of the EC Treaty. 5 – Article 3(1)(c) EC. 6 – See also the Opinion of Advocate General Poiares Maduro in Case C-446/03 Marks &Spencer [2005] ECR I-10837, paragraphs 21 to 40. 7 – BGBl. 1997 I, p. 821; the version of the EStG applicable both at the time of the main proceedings in Case C-76/05 and at the time of the letter of formal notice in Case C-318/05 does not differ from the currently applicable version as far as the relevant provisions at issue are concerned. 8 – BGBl. 1949, p. 1. 9 – Hereinafter all Treaty articles will be cited using the numbering system which has applied since the Treaty of Amsterdam. The articles relevant to the proceedings have not been amended substantively since the years at issue, 1998 and 1999. 10 – Case 263/86 Humbel [1988] ECR 5365, paragraphs 15 to 19, and Case C‑109/92 Wirth [1993] ECR I‑6447, paragraph 17. 11 – Case C‑209/03 Bidar [2005] ECR I‑2119, paragraph 56. 12 – Humbel (cited in footnote 10), paragraphs 15 to 19, and Wirth (cited in footnote 10), paragraph 17. 13 – Case C‑224/98 D’Hoop [2002] ECR I‑6191, paragraphs 29 to 31. 14 – Case 292/86 Gullung [1988] ECR 111, paragraphs 11 to 13. 15 – Case C‑224/97 Ciola [1999] ECR I‑2517, paragraph 11; Case C‑384/93 AlpineInvestments [1995] ECR I‑1141, paragraph 22; Case 186/87 Cowan [1989] ECR 195, paragraph 15; and Joined Cases 286/82 and 26/83 Luisi and Carbone [1984] ECR 377, paragraph 10. 16 – Cited in footnote 10, paragraphs 17 to 19; also the Opinion of Advocate General Van Gerven in Case C‑19/92 Kraus [1993] ECR I‑1663, point 19. 17 – Cited in footnote 10, paragraph 16 et seq. 18 – See, however, the arguments put forward by the Bundesfinanzhof (German Federal Finance Court) to reject the relevance to the decision of an interpretation of Community law having regard to Paragraph 10(1)(9) of the EStG and thus to decline to make a reference for a preliminary ruling; see Bundesfinanzhof, judgment of 11 June 1997, X R 74/95 BStBl II 1997, p. 617; Bundesfinanzhof, judgment of 16 December 1998, BFH‑NV 1999, p. 918. 19 – Case C‑372/04 [2006] ECR I-4325, paragraph 91. 20 – See in particular Joined Cases C‑264/01, C‑306/01, C‑354/01 and C‑355/01 AOK Bundesverband and Others [2004] ECR I‑2493, paragraph 47, and Joined Cases C‑159/91 and C‑160/91 Poucet and Pistre [1993] ECR I‑637, paragraphs 15 and 18. 21 – See also Söhn, in: Kirchhof/Söhn, Einkommensteuergesetz, Kommentar, Vol. 9, Paragraph 10(1)(9), L 66, Heidelberg 2005. 22 – Judgment of the Bundesfinanzhof of 14 December 2004, File ref.: XI R 32/03. 23 – Judgment of the Bundesfinanzhof of 5 April 2006, File ref.: XI R 1/04. 24 – See also the arguments on the recognition of charitable status for foundations governed by private law in my Opinion in Case C‑386/04 Stauffer [2006] ECR I‑8203, points 91 and 93. 25 – See point 30 above. 26 – To that effect see also the comments made by the Commission in its pleading in the proceedings under Article 234 EC (paragraph 38, footnote 14) and in the application under Article 226 EC (paragraph 42, footnote 22). 27 – At the hearing on 2 May 2006, the legal representative of the applicant in the main proceedings pointed out that in certain cases private schools are financed not only from payments of school fees, but also from payments from support associations, whose income comes from ‘voluntary’ donations, from parents in particular. 28 – Humbel (cited in footnote 10), paragraph 17, and Wirth (cited in footnote 10), paragraph 17. 29 – To that effect see also the Opinion of Advocate General Van Gerven in Kraus (cited in footnote 16), point 20, and the Opinion of Advocate General Sir Gordon Slynn of 16 January 1985 in Case 293/83 Gravier [1985] ECR 593. 30 – Case C‑157/99 Peerbooms [2001] ECR I‑5473, paragraph 57, Joined Cases C‑51/96 and C‑191/97 Deliège [2000] ECR I‑2549, paragraph 56, and Case 352/85 Bond van Adverteerders and Others [1988] ECR 2085, paragraph 16. 31 – Schmitt-Kammler, in: Sachs, Grundgesetz, Kommentar, Article 7, paragraph 62, Munich 1999; Gröschner, in: Dreier, Grundgesetz, Kommentar, Vol. I, Article 7, paragraph 105, Tübingen 1996; Robbers, in: v. Mangoldt/Klein/Starck, Das Bonner Grundgesetz, Kommentar, Vol. 1, Article 7, paragraphs 191, 199, 209, Munich 1999. 32 – In that communication, the Federal German Government argued that the private schools given preferential treatment by Paragraph 10(1)(9) of the EStG do not provide services since they do not as a rule operate commercially. Special cases where some schools receive lower subsidies in accordance with the requirements laid down in the law of the Länder and therefore have to charge higher school fees does not affect the assessment in its view. 33 – Opinion of Advocate General Sir Gordon Slynn of 15 March 1988 in Humbel (judgment cited in footnote 10) and in Gravier (cited in footnote 29), p. 603. 34 – Opinion in Humbel (cited in footnote 33). 35 – Case C‑213/96 Outokumpu Oy [1998] ECR I‑1777, paragraph 34; Case C‑152/89 Commission v Luxembourg [1991] ECR I‑3141, paragraph 20; and Case 45/75 REWE [1976] ECR 181, paragraph 17. 36 – Bidar (cited in footnote 11), paragraph 56. 37 – Case C‑436/00 X and Y [2002] ECR I‑10829, paragraph 50; Danner (cited in footnote 3), paragraph 56; and Case C‑35/98 Verkooijen [2000] ECR I‑4071, paragraph 59. 38 – See also Gonella, ‘Unvereinbarkeit des § 10 Absatz 1 Nr. 9 EStG mit Europarecht’, Der Betrieb 1994, Vol. 28, p. 1395. 39 – See point 21 above. 40 – Point 29 et seq. 41 – Point 41 et seq. 42 – Point 59 et seq. 43 – JO 1967 L 152, p. 13 et seq. 44 – See the recent case-law of the Bundesfinanzhof (cited in footnotes 22 and 23). 45 – See the above arguments in Case C‑76/05, point 59 et seq. 46 – See point 26 above. 47 – Otherwise they would have to be regarded as either employed persons (Article 39 EC) or self-employed persons (Article 43 EC). 48 – The judgment in Case C‑413/99 Baumbast [2002] ECR I‑7091, paragraphs 80 to 84, held that a reliance on Articles 12(1) EC and 18(1) EC requires an economic activity within the meaning of Articles 39 EC, 43 EC or 49 EC to be carried on in other Member States. 49 – Case 24/86 Blaizot and Others [1988] ECR 379, paragraphs 11 and 15, and Gravier (cited in footnote 29), paragraph 25. 50 – Bidar (cited in footnote 11), paragraph 32; Case C‑184/99 Grzelczyk [2001] ECR I‑6193, paragraph 32; and Case C‑85/96 Martínez Sala [1998] ECR I‑2691, paragraph 63. 51 – Case C‑148/02 Garcia Avello [2003] ECR I‑11613, paragraph 24, and Case C‑274/96 Bickel and Franz [1998] ECR I‑7637, paragraphs 15 and 16. 52 – Grzelczyk (cited in footnote 50), paragraphs 30 to 32. 53 – See point 41 et seq. above. 54 – See point 59 above. 55 – See points 2 and 45 above.