Opinion of the Advocate General — ECLI:EU:C:2017:610
Date: 2017-07-26
Language of the case: French
Subject matter: Right of establishment
Procedure: Reference for a preliminary ruling
Origin: France

Summary — Judgment of the Court (First Chamber), 15 March 2018 1. International agreements — EC/Switzerland Agreement on the free movement of persons — Freedom of establishment — Interpretation of the agreement — Automatic application of the interpretation given to the provisions of EU law to the agreement — Lawfulness — Condition — Existence of express provisions to that effect (EC/Switzerland Agreement on the free movement of persons) 2. International agreements — EC/Switzerland Agreement on the free movement of persons — Scope ratione personae — Natural person outside the scope of the concept of ‘self-employed persons’ laid down in the agreement — Transfer of the place of residence from a Member State to Switzerland — National legislation providing for the taxation of unrealised gains on shareholdings in companies established in the Member State of origin — Lawfulness (EC/Switzerland Agreement on the free movement of persons) 1. See the text of the decision. (see para. 29) 2. Where a situation, such as that at issue in the main proceedings, does not come within the scope ratione personae of the notion of ‘self-employed persons’, within the meaning 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, signed in Luxembourg on 21 June 1999, the terms of that agreement must be interpreted as not precluding the legislation of a State party to that agreement, such as that at issue in the main proceedings, which, when a natural person transfers his residence from that State to another State party to that agreement, while maintaining his economic activity in the first of those two States, without undertaking every day, or at least once a week, a journey from the place of his economic activity to that of his residence, provides for the immediate taxation of the unrealised capital gains on significant shareholdings held by that person in companies governed by the laws of the first State at the time of the transfer of residence and which allows deferred recovery of the tax due only if suitable guarantees to ensure recovery of the tax are provided, whereas a person who also holds such shareholdings, but who continues to reside in the territory of the first of those States, need pay tax only at the time of transfer of those shareholdings. (see para. 32, operative part)