Judgment — ECLI:EU:C:2007:600
Date: 2007-10-11
Language of the case: Portuguese
Court formation: Fourth Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Free movement of workers;Anti-discrimination;Non-discrimination on grounds of nationality
Concepts: Free movement of capital and freedom of payments;Jurisdiction of the Court of Justice;Prohibition of discrimination on grounds of nationality
Procedure: Reference for a preliminary ruling
Origin: Portugal

Summary of the Judgment 1. Preliminary rulings – Jurisdiction of the Court – Limits (Art. 234 EC) 2. Community law – Principles – Equal treatment – Discrimination on grounds of nationality (Arts 7 and 56 EC) 3. Free movement of capital – Restrictions – Tax legislation (Art. 56 EC) 1. Although it is not for the Court to rule on the compatibility of national rules with the provisions of Community law in proceedings brought under Article 234 EC, since the interpretation of such rules is a matter for the national courts, the Court does have jurisdiction to supply the latter with all the guidance as to the interpretation of Community law necessary to enable them to rule on the compatibility of such rules with the provisions of Community law. (see para. 18) 2. Article 12 EC applies independently only to situations governed by Community law for which the Treaty lays down no specific rules of non-discrimination. The Treaty lays down in Article 56 EC, in particular, a specific rule of non‑discrimination in relation to the free movement of capital. (see paras 28-29) 3. Article 56 EC must be interpreted as precluding national legislation which subjects capital gains resulting from the transfer of immovable property situated in a Member State, where that transfer is made by a resident of another Member State, to a tax burden greater than that which would be applicable for the same type of transaction to capital gains realised by a resident of the State in which that immovable property is situated. Such legislation constitutes a restriction on the movement of capital prohibited by Article 56 EC, in that it has the effect of making the transfer of capital less attractive for non-residents by deterring them from making investments in immovable property in the Member State concerned and, as a result, from carrying out transactions related to those investments such as selling immovable property. Where: (i) the taxation in question concerns only one of the categories of income received by taxable persons, whether they are resident or non-resident; (ii) it concerns both categories of taxable persons; and (iii) the Member State in which the taxable income arises is the Member State concerned, there is no difference in situation capable of justifying the unequal tax treatment in respect of the taxation of capital gains between those two categories of taxable persons. (see paras 39-40, 50, 53-54, 61, operative part)