Opinion of the Advocate General — ECLI:EU:C:2010:289
Date: 2010-05-20
Language of the case: German
Subject matter: Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Austria

Summary of the Judgment 1. Freedom to provide services – Services – Definition 2. International agreements – EC-Switzerland Agreement on the free movement of persons – Freedom to provide services (EC-Switzerland Agreement on the free movement of persons, Arts 1, 2 and 15 and Annexes I, II and III) 1. Where a contractual obligation consists in the making available to the parties, in return for payment and on certain conditions, of an area of land in a Member State in order to hunt there, the letting contract relates to a provision of services. It is also of a cross-border nature if the lessees are of Swiss nationality. Such lessees must be regarded as the recipients of a service which consists in the grant, in return for payment, of the exploitation of a right to hunt in that area of land for a limited time. (see paras 31-33) 2. The provisions of the Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons do not preclude a national of one of the contracting parties from being subjected in the territory of the other contracting party, as a recipient of services, to different treatment from that reserved to persons whose principal residence is in that territory, citizens of the Union, and persons who are equated to those citizens under European Union law, with respect to the charging of a tax payable for the provision of services such as the making available of a right to hunt. While Article 2 of the Agreement deals with the principle of non-discrimination, it imposes a general and absolute prohibition not on all discrimination against nationals of one of the contracting parties who are staying in the territory of the other party but only on discrimination on grounds of nationality where the situation of those nationals falls within the material scope of the provisions of Annexes I to III to the Agreement. The Agreement and its annexes do not contain any specific rule intended to allow recipients of services to benefit from the principle of non-discrimination in connection with the application of fiscal provisions relating to the commercial transactions whose subject is the provision of services. Moreover, since the Swiss Confederation has not joined the internal market of the Community, the aim of which is the removal of all obstacles to create an area of total freedom of movement analogous to that provided by a national market, which includes the freedom to provide services and the freedom of establishment, the interpretation given to the provisions of European Union law concerning the internal market cannot be automatically applied by analogy to the interpretation of the Agreement, unless there are express provisions to that effect laid down by the Agreement itself. (see paras 39-43, operative part)