Opinion of the Advocate General — ECLI:EU:C:2016:100
Date: 2016-02-18
Language of the case: German
Subject matter: Taxation;Free movement of capital
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary — Judgment of the Court (First Chamber), 8 June 2016 1. Questions referred for a preliminary ruling — Admissibility — Limits — Clearly irrelevant questions and hypothetical questions put in a context not permitting a useful answer (Art. 267 TFEU) 2. Questions referred for a preliminary ruling — Jurisdiction of the Court — Limits — Jurisdiction of the national court — Establishing and assessing the facts of the dispute — Application of the relevant national law — Suppositions raised by the parties — Not to be taken into consideration (Art. 267 TFEU) 3. Free movement of capital and liberalisation of payments — Restrictions — Gift tax — Tax free allowance in the case of a gift of property situated within the territory of a Member State — Allowance limited, failing a specific application by the beneficiary, in respect of gifts made between a donor and donee both residing in another Member State to less than that applied in the case where one of those persons resides on the national territory — Possibility for the beneficiary of a gift between non-residents, on that beneficiary’s application, to obtain the higher tax free allowance provided for in respect of gifts involving at least one resident — Aggregation, for the purpose of the calculation of tax due, of all the gifts received by that beneficiary from the same person over the course of the 10 years preceding and the 10 years following that gift — Not permissible — No justification (Arts 63 TFEU and 65 TFEU) 1. See the text of the decision. (see para. 30) 2. In the context of a reference for a preliminary ruling, the referring court alone has jurisdiction to find and assess the facts in the case before it and to interpret and apply national law. The Court must, in principle, confine its examination to the matters which the referring court has decided to submit to it for consideration. As regards the application of the relevant national law, the Court must, therefore, proceed on the basis of the situation which that court or tribunal considers to be established and it cannot be bound by suppositions raised by one of the parties to the main proceedings. (see para. 36) 3. Articles 63 TFEU and 65 TFEU must be interpreted as precluding rules of national law that provide, in respect of gifts between non-residents, in the absence of a specific request by the beneficiary, for recourse to a method of calculation of taxation by application of a lower tax-free allowance. Those articles also preclude, in any event, national legislation which provides, at the request of such a beneficiary, for recourse to a method of calculation of taxation by application of a higher tax-free allowance which applies to gifts in respect of which at least one party is a resident, the exercise of that option by the non-resident beneficiary involving the aggregation, for the purpose of the calculation of tax due on the gift in question, of all the gifts received by that beneficiary from the same person over the course of the 10 years preceding and the 10 years following that gift. Unlike gifts in respect of which at least one resident is a party, in the calculation of the taxation of which only gifts made earlier may be aggregated, thus enabling the taxable person to predict the amount of tax payable, in the case of gifts between non-residents the aggregation of transfers also applies to those that will occur over the course of the 10 years following the gift in question, which thus places those beneficiaries in the position of not knowing what tax on asset transfers will later be payable. Such a lack of foreseeability may have the effect of deterring non-residents from acquiring or maintaining property situated in that Member State, given that the later transfer of those assets to other non-residents would place the latter in a position of uncertainty for a longer time as regards the future taxation that might be demanded by that Member State. In those circumstances, subject to the checks to be carried out by the referring court as to the length of the period to be taken into account for the purpose of the application, at the request of non-resident beneficiaries, of the higher tax-free allowance, which involves the interpretation and application of the law of the Member State, as regards the length of the period for the aggregation of the gifts to be taken into account for the application of the higher allowance, the tax treatment of gifts between non-residents that is less favourable than that of gifts in respect of which at least one of the parties is a resident, constitutes a restriction on the free movement of capital that is prohibited, in principle, by Article 63(1) TFEU. Where national legislation places on the same footing, for the purposes of taxing immovable property acquired by gift which is located in the Member State concerned, on the one hand, non-resident beneficiaries who have acquired the property from a non-resident donor, and, on the other hand, non-resident or resident beneficiaries who have acquired such property from a resident donor and resident beneficiaries who have acquired it from a non-resident donor, that national legislation cannot — without infringing the requirements of EU law — treat those beneficiaries differently in connection with that tax as regards the application of an allowance against the taxable value of the immovable property. By treating gifts to those two classes of persons in the same way, except in relation to the period to be taken into account for the application of the allowance from which the beneficiary may benefit, the national legislature has, in effect, accepted that there is no objective difference between them in regard to the detailed rules and conditions of charging gift tax such as could justify a difference in treatment. It follows that, as the relevant period to be taken into account for the application of the tax-free allowance does not depend on the amount of the taxable value but applies to the beneficiary in his capacity as a taxable person, the characteristics pertaining to the tax liability of the non-resident beneficiary who receives a gift from a non-resident donor are not such as to make the situation of that beneficiary, as regards that period, objectively different from that of a non-resident beneficiary who receives a gift from a resident donor or from that of a resident beneficiary who receives a gift from a non-resident donor. Finally, as regards whether there is a possible justification for an overriding reason in the general interest, the aggregation of all the gifts received over a period of 20 years, on a specific request by the beneficiary for the application of a higher tax-free allowance, cannot be considered to be an appropriate means by which to achieve either the objective of safeguarding the coherence of the national tax system or guaranteeing the need to ensure a balanced allocation of the Member States’ powers to impose taxes. (see paras 46-48, 56, 59, 63, 65, 68, operative part)