Opinion of the Advocate General — ECLI:EU:C:2007:253
Date: 2007-04-26
Language of the case: French
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Free movement of capital
Procedure: Reference for a preliminary ruling
Origin: France

Summary of the Judgment 1. Approximation of laws – Mutual assistance by the authorities of the Member States in the field of direct and indirect taxation – Directive 77/799 (Council Directive 77/799, Art. 1(2) and (3)) 2. Approximation of laws – Mutual assistance by the authorities of the Member States in the field of direct and indirect taxation – Directive 77/799 (Council Directive 77/799, Art. 8(1)) 3. Free movement of capital – Restrictions – Tax on the commercial value of immovable property owned by legal persons (EC Treaty, Art. 73b (now Art. 56 EC)) 1. A tax by a Member State on the commercial value of immovable property owned in that Member State by legal persons is a tax which is similar in nature to those taxes referred to in Article 1(3) of Directive 77/799 concerning mutual assistance by the competent authorities of the Member States in the field of direct and indirect taxation, which is levied on elements of capital within the meaning of Article 1(2) of that directive. (see para. 37, operative part 1) 2. Directive 77/799 concerning mutual assistance by the competent authorities of the Member States in the field of direct and indirect taxation, and in particular Article 8(1) thereof, does not preclude two Member States from binding themselves by means of an international convention, with the intention of avoiding double taxation and establishing rules for reciprocal administrative assistance in the area of taxes on income and capital, which excludes from its scope, in respect of one Member State, one category of taxpayers subject to a tax covered by that directive, if the competent authority of the Member State which should furnish information is prevented by its laws or administrative practices from collecting or using such information for that State’s own purposes, that being a matter which it is for the national court to verify. (see para. 55, operative part 2) 3. Article 73b of the EC Treaty (now Article 56 EC) must be interpreted as precluding national legislation which exempts companies established in that Member State from the tax on the commercial value of immovable property owned there by legal persons, when, in respect of companies established in another Member State, it makes that exemption subject either to the existence of a convention on administrative assistance between the Member State concerned and that other State for the purposes of combating tax avoidance and tax evasion or to the existence of a requirement in a treaty containing a clause prohibiting discrimination on grounds of nationality to the effect that those companies cannot be more heavily taxed than companies established in the first Member State, and which does not allow the company established in another Member State to supply evidence to establish the identity of the natural persons who are its shareholders. (see para. 102, operative part 3)