Opinion of the Advocate General — ECLI:EU:C:2015:786
Date: 2015-11-26
Language of the case: German
Subject matter: Right of establishment
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary — Judgment of the Court (Third Chamber), 14 April 2016 Freedom of establishment — Tax legislation — Restrictions — National legislation requiring credit institutions to disclose to the tax authority information concerning deceased customers’ assets held or managed at their branches established in another Member State — Banking secrecy requirement, breach of which constitutes a criminal offence, in the second Member State — Lawfulness of the disclosure obligation (Art. 49 TFEU) Article 49 TFEU must be interpreted as not precluding legislation of a Member State which requires credit institutions having their head office in that Member State to notify the national authorities of assets held or managed at their dependent branches established in another Member State in the event of the death of the owner of those assets who is resident in the first Member State, in the case where there is no similar notification obligation in that second Member State and credit institutions there are subject to banking secrecy breach of which constitutes a criminal offence. In the first place, the adverse consequences which might arise from such a notification obligation result from the exercise in parallel by two Member States of their powers (i) in regard to regulating the obligations of banks and other credit institutions towards their clients with regard to maintaining banking secrecy and (ii) of fiscal supervision, the Member State of the branch requiring that banking secrecy be maintained in all regards, including with regard to the tax authorities, whereas in the Member State in which the head office is situated, compliance with banking secrecy cannot take precedence over the need to ensure that fiscal supervision is effective, for which reason the legislation at issue imposes, in the circumstances which it covers, an obligation to forward information to the tax authorities without the consent of the account holder concerned. In the second place, in the absence of any harmonising measure in relation to the exchange of information for the requirements of fiscal supervision, Member States are free to impose such a notification obligation on national credit institutions, concerning their branches operating abroad, with the objective of ensuring the effectiveness of fiscal supervision, on condition that the transactions carried out in those branches are not treated in a manner that is discriminatory in comparison with transactions carried out by their national branches. Freedom of establishment cannot be understood as meaning that a Member State is required to draw up its tax rules and, in particular, a notification obligation on the basis of those in another Member State in order to ensure, in all circumstances, that any disparities arising from national rules are removed. (see paras 25, 26, 29, 31, 32, operative part)