Opinion of the Advocate General — ECLI:EU:C:2006:239
Date: 2006-04-06
Language of the case: French
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Freedom to provide services
Procedure: Action for failure to fulfil obligations - successful
Origin: Belgium

Summary of the Judgment Freedom to provide services – Restrictions – Tax legislation (Arts 49 EC and 50 EC) A Member State which obliges principals and contractors who have recourse to foreign contracting partners not registered with the authorities in that Member State to withhold 15% of the sum payable for work carried out and imposes on those principals and contractors joint and several liability for the tax debts of such contracting partners fails to fulfil its obligations under Articles 49 EC and 50 EC. The withholding and the joint and several liability obligations, even if applied to an unregistered service provider whether he is established in the Member State in question or in another Member State, constitute a restriction on the freedom to provide services since they are likely to deter providers who are not registered and not established in that Member State from having access to the market of that Member State in order to provide services there, or to deter principals and contractors from using the services of those providers. The need to combat tax evasion is not sufficient to justify application of the withholding and joint and several liability obligations, generally and on a precautionary basis, to all service providers who are not established and not registered in the Member State in question, since some of those providers are in principle not liable for the taxes and deductions whose recovery those measures are designed to ensure, and less restrictive means exist of ensuring the recovery of the taxes and deductions for which such providers may be liable in certain cases. (see paras 30-32, 36-37, 42, operative part 1)