Opinion of the Advocate General — ECLI:EU:C:2006:632
Date: 2006-10-03
Language of the case: French
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: European Free Trade Association (EFTA);Citizenship of the Union;Right of establishment;External relations;Freedom to provide services;Free movement of workers
Procedure: Action for failure to fulfil obligations - successful;Action for failure to fulfil obligations - inadmissible
Origin: Belgium

Summary of the Judgment 1. Member States – Obligations – Failure to fulfil obligations – Maintenance of a national provision incompatible with Community law 2. Freedom of movement for persons – Workers – Freedom of establishment – Freedom to provide services – Citizens of the European Union – Restrictions – Tax legislation (Arts 18 EC, 39 EC, 43 EC and 49 EC; EEA Agreement, Arts 28, 31 and 36; European Parliament and Council Directive 2002/83, Art. 5(1); Council Directive 92/96, Art. 4) 1. Even if, in practice, the authorities of a Member State do not apply a national provision which is at variance with Community law, the principle of legal certainty nevertheless requires that that provision be amended. (see para. 70) 2. A Member State which: – makes the tax-deductibility of employers’ insurance contributions due under a supplementary pension and life assurance scheme subject to the condition that those contributions be paid to an insurance undertaking or welfare fund established in that Member State; – makes tax reduction for long-term savings, granted for personal supplementary pension and life assurance contributions and premiums paid in the form of deductions made by the employer from the employee’s remuneration, or in the form of deductions made by the undertaking from the remuneration of a director who is not under a contract of employment, subject to the condition that those contributions and premiums be paid to an insurance undertaking or welfare fund established in that Member State; – provides that, when capital, surrender values and savings are paid or allocated to a taxpayer who has previously transferred his residence or the primary location of his assets abroad, the payment or allocation is deemed to have taken place on the day preceding that transfer, and by treating in the same way as an allocation any transfer, so that every insurer is under an obligation to withhold amounts in respect of income tax from capital and surrender values paid to a non-resident who has been, at one time or another, resident for tax purposes in that Member State, in so far as those sums have been built up, entirely, or partially, during the period in which the person concerned was resident in that State for tax purposes, even though bilateral tax agreements concluded by that State grant the right to tax such income to another Contracting State; – levies tax on transfers of capital or surrender values built up by means of employers’ contributions or personal contributions for supplementary retirement benefits, where the transfer is made by the pension fund or insurance institution with which the capital or surrender values have been built up in favour of the beneficiary or persons entitled through him, to another pension fund or insurance institution established outside that Member State, whereas such a transfer does not constitute a taxable transaction if the capital or surrender values are transferred to another pension fund or insurance institution established within that State; – requires foreign insurers who have no place of business in that Member State to obtain authorisation, before providing their services in that State, for a representative residing there, who must personally assume, in writing, responsibility towards the State for paying the annual tax on insurance contracts, interest and fines which may be due in respect of contracts relating to risks situated in that State thereby fails to fulfil its obligations under Articles 18 EC, 39 EC, 43 EC and 49 EC, Articles 28, 31 and 36 of the European Economic Area Agreement and Article 4 of Directive 92/96 on the coordination of laws, regulations and administrative provisions relating to direct life assurance and amending Directives 79/267 and 90/619 (third life assurance Directive) – following revision, Article 5(1) of Directive 2002/83 concerning life assurance. Since the provisions of the Treaty and of the EEA Agreement on freedom of movement for workers, freedom of establishment and freedom of movement for persons preclude such legislation, it is not necessary to consider that legislation separately in the light of Article 56 EC on free movement of capital. (see paras 79-80, operative part)