Opinion of the Advocate General — ECLI:EU:C:2010:162
Date: 2010-03-25
Language of the case: Portuguese
Subject matter: Free movement of capital;Freedom to provide services
Procedure: Action for failure to fulfil obligations - unfounded
Origin: Portugal

Summary of the Judgment Actions for failure to fulfil obligations – Proof of failure – Burden of proof on Commission (Art. 226 EC) In proceedings brought under Article 226 EC for failure to fulfil obligations, it is incumbent upon the Commission to prove the allegation that an obligation has not been fulfilled. It is the Commission’s responsibility to place before the Court the information required to enable the Court to establish that the obligation has not been fulfilled, and in so doing the Commission may not rely on any presumption whatsoever. Thus, when the Commission seeks to prove that national tax legislation results in higher taxation of interest paid to non-resident entities and relies, for that purpose, on an arithmetical example, it is incumbent on it to establish that the figures on which its calculation is based reflect the economic reality inasmuch as, first, the calculation in question, which the Commission itself describes as ‘theoretical’, is disputed by the national government on the ground that the premiss underlying it bears no relation to the true position and as, second, the government concerned puts forward a calculation based on a different profit margin which produces a solution in which resident legal entities are taxed more heavily. The Commission may thus furnish, inter alia, statistical data or information concerning the level of interest paid on bank loans and relating to the refinancing conditions in order to support the plausibility of its calculations. Since the Commission failed to produce, either during the written procedure or the hearing, or even after an express request by the Court, any conclusive evidence whatsoever that would have been capable of establishing that the figures it puts forward in support of its argument are in fact borne out by the actual facts, and the arithmetical example on which it relies is purely hypothetical, the Commission has failed to prove that the obligation has not been fulfilled. (see paras 26-27, 29-31)