Opinion of the Advocate General — ECLI:EU:C:2010:235
Date: 2010-04-29
Language of the case: French
Subject matter: European Free Trade Association (EFTA);External relations;Taxation;Free movement of capital;Value added tax
Procedure: Reference for a preliminary ruling
Origin: France

Summary of the Judgment 1. International agreements – Agreement on the European Economic Area – Free movement of capital – Legal scope identical to that of Community provisions (Art. 63 TFEU; EEA Agreement, Art. 40 and Annex XII) 2. International agreements – Agreement on the European Economic Area – Free movement of capital – Restrictions – Tax legislation – Tax on the commercial value of immovable property owned by legal persons (EEA Agreement, Art. 40) 1. One of the principal aims of the Agreement on the European Economic Area (EEA Agreement) is to provide for the fullest possible realisation of the free movement of goods, persons, services and capital within the whole EEA, so that the internal market established within the European Union is extended to the States of the European Free Trade Association (EFTA States). From that angle, several provisions of the EEA Agreement are intended to ensure as uniform an interpretation thereof as may be throughout the EEA. It is for the Court, in that context, to ensure that the rules of the EEA Agreement identical in substance to those of the TFEU are interpreted uniformly within the Member States. It is apparent from Article 40 of the EEA Agreement that the rules laid down therein prohibiting restrictions of the movement of capital and discrimination are identical, so far as concerns relations between the States party to the EEA Agreement, irrespective of whether they are members of the European Union or members of EFTA, to the rules under EU law regarding relations between the Member States. It follows that, although restrictions on the free movement of capital between nationals of States party to the EEA Agreement must be assessed in the light of Article 40 of that Agreement and Annex XII thereto, those provisions have the same legal scope as Article 63 TFEU. (see paras 20-22) 2. Article 40 of the Agreement on the European Economic Area does not preclude national legislation which exempts from the tax on the market value of immovable property located in a Member State of the European Union companies which have their seat in that Member State and which, in respect of a company which has its seat in a country belonging to the European Economic Area which is not a Member State of the European Union, makes that exemption conditional either on the existence of a convention on administrative assistance between the Member State and the non-member State for the purposes of combating tax evasion and avoidance or on the fact that, pursuant to a treaty containing a clause prohibiting discrimination on grounds of nationality, those legal persons must not be taxed more heavily than companies established in a Member State. Although such legislation constitutes, for legal persons, a restriction of the free movement of capital which is, in principle, prohibited under Article 40 of the EEA Agreement, just as it is prohibited under Article 63 TFEU, the justification based on the fight against tax evasion and the need to safeguard the effectiveness of fiscal supervision are assessed differently, since the framework for cooperation between the competent authorities of the Member States established by Directive 77/799 concerning mutual assistance by the competent authorities of the Member States in the field of direct and indirect taxation does not exist between those authorities and the competent authorities of a non-member State when that State has not entered into any undertaking of mutual assistance. In those circumstances, it is, in principle, legitimate for a Member State to refuse to grant that advantage if – in particular, because that non-member State is not bound under an agreement to provide information – it proves impossible to obtain such information from that country. (see paras 29, 41, 44, 52, operative part)