Opinion of the Advocate General — ECLI:EU:C:2002:198
Date: 2002-03-21
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Anti-discrimination;Non-discrimination on grounds of nationality
Procedure: Reference for a preliminary ruling
Origin: Finland

Summary of the Judgment 
1. Freedom to provide services — Treaty provisions — Scope — Voluntary pension 
insurance — included 
(EC Treaty, Art. 59 (now, after amendment, Art. 49 EC) and Art. 60 (now Art. SO 
EC» 
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SUMMARY — CASE C-136/00 
2. Freedom to provide services — Restrictions — Income tax — Deductibility for 
income tax purposes of voluntary pension insurance contributions — Exclusion of 
contributions paid to a pension provider established in another Member State 
notwithstanding taxation of pensions paid — Not permissible — Justification — 
None 
(EC Treaty, Art. 59 (now, after amendment, Art. 49 EC)) 
1. The Treaty provisions relating to free­
dom to provide services apply to vol­
untary pension insurance schemes inas­
much as the contributions paid by the 
insured constitute consideration for 
pensions which will be payable when 
he stops working and represent remun­
eration as regards the institutions 
which receive them. Under Article 60 
of the Treaty (now Article 50 EC), 
which provides that the chapter con­
cerning services applies to services 
normally provided for remuneration, 
the essential characteristic of remuner­
ation lies in the fact that it constitutes 
consideration for the service in ques­
tion. 
(see paras 26-27) 
2. Article 59 of the Treaty (now, after 
amendment, Article 49 EC) is to be 
interpreted as precluding a Member 
State's tax legislation from restricting 
or disallowing the deductibility for 
income tax purposes of contributions 
to voluntary pension schemes paid to 
pension providers in other Member 
States while allowing such contribu­
tions to be deducted when they are 
paid to institutions in the first-men­
tioned Member State, if that legislation 
does not at the same time preclude 
taxation of the pensions paid by the 
abovementioned pension providers. 
In view of the important role played, at 
the time when a pension insurance 
contract is taken out, by the possibility 
of obtaining tax relief under that head, 
such legislation is liable to dissuade 
individuals from taking out voluntary 
pension insurance with institutions 
established in other Member States 
and to dissuade those institutions from 
offering their services on the market of 
the first-mentioned Member State. 
The need to ensure the coherence of the 
national tax system, guarantee the 
effectiveness of fiscal controls or pro-
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DANNER 
teet the basis of tax revenue cannot 
justify such legislation, inasmuch as: 
— first, there is no direct connection 
between the deductibility of insur­
ance contributions and the taxation 
of sums payable by insurers and, as 
a result of double-taxation conven­
tions, fiscal cohesion is no longer 
established in relation to one and 
the same person; 
— secondly, apart from the fact that 
there is nothing to prevent the tax 
authorities concerned from requi­
ring the taxpayer to provide such 
proof as they may consider necess­
ary in order to determine whether 
the conditions for deducting con­
tributions provided for have been 
met, a Member State may rely on 
Directive 77/799 concerning 
mutual assistance by the competent 
authorities of the Member States in 
the field of direct taxation in order 
to obtain all the information 
enabling it to ascertain the correct 
amount of income tax, while the 
effectiveness of the supervision of 
the taxation of pensions may be 
ensured by measures which restrict 
freedom to provide services to a 
lesser degree; 
— thirdly, the need to prevent the 
reduction of tax revenue is not one 
of the grounds listed in Article 56 
of the Treaty (now, after amend­
ment, Article 46 EC) or a matter of 
overriding general interest, and any 
tax advantage resulting for pro­
viders of services from the low 
taxation to which they are subject 
in the Member State in which they 
are established cannot be used by 
another Member State to justify less 
favourable treatment in tax matters 
given to recipients of services estab­
lished in the latter State. 
(see paras 31-32, 37, 41, 49-52, 
56-57, operative part) 
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