Opinion of the Advocate General — ECLI:EU:C:2006:719
Date: 2006-11-16
Language of the case: French
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Right of establishment
Procedure: Reference for a preliminary ruling
Origin: Belgium

Summary of the Judgment Freedom of movement for persons – Freedom of establishment – Tax legislation (EC Treaty, Art. 52 (now, after amendment, Art. 43 EC) Article 52 of the Treaty (now, after amendment, Article 43 EC) precludes income tax legislation of a Member State which, for the assessment of the tax base in the absence of evidence provided by the interested parties or by the administration, lays down minimum tax bases only for non‑resident taxpayers. Income derived from self-employed activity in the territory of the Member State concerned, whether by a resident taxpayer or a non-resident taxpayer, falls within the same category of income. Moreover, the situation of a resident taxpayer and that of a non-resident taxpayer present, for the tax authorities concerned, the same difficulties, with the result that those two categories of taxpayers are in an objectively comparable position. In those circumstances, a distinction based on the criterion of residence constitutes indirect discrimination, since it is liable to operate mainly to the detriment of nationals of other Member States, non-residents being in the majority of cases non-nationals. (see paras 26, 28, 32, 38, operative part)