Opinion of the Advocate General — ECLI:EU:C:1999:25
Date: 1999-01-26
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the Judgment 
Freedom to provide services — Restrictions — Trade tax on capital and earnings — 
National legislation providing for the add-back of certain elements to the taxable amount 
for undertakings leasing assets from lessors established outside that State — Not 
permissible — Whether justified on grounds relating to the general interest — No such 
justification 
(EC Treaty, Art. 59 (now, after amendment, Art. 49 EC) 
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SUMMARY — CASE C-294/97 
Article 59 of the Treaty (now, after amend­
ment, Article 49 EC) precludes national 
legislation governing trade tax (on the 
capital and earnings of industrial and 
commercial establishments) under which 
the taxable amount is to include part of the 
rental payments for the use of fixed busi­
ness assets owned by another person, as 
well as the value of those assets, in so far as 
that tax is not already payable on such 
rentals or assets by the lessor. 
National legislation which reserves a fiscal 
advantage — consisting in the lack of any 
obligation to make that 'add-back' to the 
taxable amount — to the majority of 
undertakings which lease assets from les­
sors established in that State whilst depriv­
ing those leasing from lessors established in 
another Member State of such an advan­
tage gives rise to a difference of treatment 
based on the place of establishment of the 
provider of services. Such a difference of 
treatment cannot be justified either by 
grounds linked to the need for coherency 
of taxation or by the fact that the lessor 
established in another Member State is 
there subject to lower taxation. 
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