Opinion of the Advocate General — ECLI:EU:C:1999:502
Date: 1999-10-14
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Anti-discrimination;Non-discrimination on grounds of nationality
Procedure: Reference for a preliminary ruling
Origin: Netherlands

Summary of the Judgment 
1. Freedom of movement for persons — Freedom of establishment — Treaty provi­
sions — Scope — Capital holding of a Member State national conferring a definite 
influence on the management of a company established in another Member State — 
Inclusion 
(EC Treaty, Art. 52 (now, after amendment, Art. 43 EC)) 
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SUMMARY — CASE C-251/98 
2. Freedom of movement for persons — Freedom of establishment — Tax legislation — 
Exemption from wealth tax in respect of assets invested in shares restricted to holdings 
in companies established in the taxing Member State — not permissible — Whether 
justified — No such justification 
(EC Treaty, Art. 52 (now, after amendment, Art. 43 EC)) 
1. It is clear from the second paragraph of 
Article 52 of the Treaty that freedom of 
establishment includes the right to set 
up and manage undertakings, in parti­
cular companies or firms, in a Member 
State by a national of another Member 
State. So, a national of a Member State 
who has a holding in the capital of a 
company established in another Mem­
ber State which gives him definite 
influence over the company's decisions 
and allows him to determine its activ­
ities is exercising his right of establish­
ment. 
(see paras 22) 
2. Article 52 of the Treaty (now, after 
amendment, Article 43 EC) precludes a 
Member State's tax legislation, which, 
in circumstances where a holding in the 
capital of a company confers on the 
shareholder a definite influence over 
the company's decisions and allows 
him to determine its activities, 
— allows nationals of Member States 
resident on its territory an exemp­
tion, in whole or in part, from 
wealth tax in respect of the assets 
invested in shares in the company, 
— but makes that exemption subject to 
the condition that the holding be 
held in a company established in the 
Member State concerned, thus deny­
ing it to holders of shares in com­
panies established in other Member 
States. 
Such legislation provides for a differ­
ence in treatment between taxpayers by 
adopting as its criterion the seat of the 
companies of which those taxpayers 
are shareholders and cannot be justi­
fied by the need to preserve the coher­
ence of the tax system. 
(see paras 30, 37-38, 41 and operative part) 
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