Opinion of the Advocate General — ECLI:EU:C:2008:169
Date: 2008-03-13
Language of the case: Dutch
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Citizenship of the Union;Free movement of capital;Anti-discrimination;Non-discrimination on grounds of nationality
Procedure: Reference for a preliminary ruling
Origin: Belgium

Summary of the Judgment 1. Preliminary rulings – Jurisdiction of the Court – Limits – Jurisdiction of the national court (Art. 234 EC) 2. Preliminary rulings – Jurisdiction of the Court – Limits – Clearly irrelevant questions and hypothetical questions put in a context not permitting a useful answer (Art. 234 EC) 3. Free movement of capital – Restrictions – Inheritance tax (Arts 56 EC and 58 EC) 1. In proceedings under Article 234 EC, which are based on a clear separation of functions between the national courts and the Court of Justice, any assessment of the facts in the case is a matter for the national court. The Court of Justice is therefore empowered to rule on the interpretation or validity of Community provisions only on the basis of the facts which the national court puts before it. Similarly, it is solely for the national court, before which the dispute has been brought and which must assume responsibility for the forthcoming judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of Community law, the Court is in principle bound to give a ruling. (see paras 27, 52) 2. In proceedings under Article 234 EC, the Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of Community law that is sought bears no relation to the facts of the main action or to its subject-matter, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it. (see para. 28) 3. The combined provisions of Articles 56 EC and 58 EC must be interpreted as precluding national legislation concerning the assessment of inheritance and transfer duties payable in respect of an immovable property situated in a Member State, which makes no provision for the deductibility of debts secured on such property where the person whose estate is being administered was residing, at the time of death, not in that State but in another Member State, whereas provision is made for such deductibility where that person was, at that time, residing in the first-mentioned Member State, in which the immovable property included in the estate is situated. Where such rules make the deductibility of certain debts secured on the immovable property in question dependent on the place where, at the time of death, the person whose estate is being administered was residing, the greater tax burden to which the inheritance of non-residents is consequently subject constitutes a restriction on the free movement of capital. That difference in treatment cannot be justified on the ground that it concerns situations which are not objectively comparable. Where national legislation places the heirs of a person who, at the time of death, had the status of resident and those of a person who, at the time of death, had the status of non-resident on the same footing for the purposes of taxing an inherited immovable property which is situated in the Member State concerned, that legislation cannot, without giving rise to discrimination, treat those heirs differently in the taxation of that property so far as concerns the deductibility of charges secured on it. By treating the inheritances of those two categories of persons in the same way (except in relation to the deduction of debts) for the purposes of taxing their inheritance, the national legislature has in fact admitted that there is no objective difference between them in regard to the detailed rules and conditions relating to that taxation which could justify different treatment. Moreover, the Member State in which the immovable property included in the estate is situated cannot, in order to justify a restriction on the free movement of capital arising from its legislation, rely on the existence of a possibility, beyond its control, of a tax credit being granted by another Member State – such as the Member State in which the person whose estate is being administered was residing at the time of death – which could, wholly or partly, offset the loss incurred by that person’s heirs as a result of the fact that, in the Member State in which the property inherited is situated, debts secured on that property are not deductible for the purposes of assessing transfer duties. (see paras 46, 60, 63, 68, 71, operative part)