Opinion of the Advocate General — ECLI:EU:C:2004:184
Date: 2004-03-25
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Free movement of capital
Procedure: Reference for a preliminary ruling
Origin: Austria

Summary of the Judgment Free movement of capital – Restrictions – Taxes on revenue from capital – Tax rate of 25% with discharging effect or ordinary tax rate reduced by half – Limitation to revenue from capital of national origin – Revenue from capital of foreign origin subject to ordinary tax without reduction – Not permissible – Justification – None (EC Treaty, Arts 73b and 73d(1) and (3) (now Arts 56 EC and 58(1) and (3) EC)) Articles 73b and 73d(1) and (3) of the Treaty (now, respectively, Articles 56 EC and 58(1) and (3) EC) preclude legislation of a Member State which allows only the recipients of revenue from capital of national origin to choose between a tax with discharging effect at the rate of 25% and ordinary income tax with the application of a rate reduced by half, while providing that revenue from capital originating in another Member State must be subject to ordinary income tax without any reduction in the rate. Such tax legislation constitutes a prohibited restriction on the free movement of capital in that it has the effect of deterring taxpayers living in the Member State concerned from investing their capital in companies established in another Member State; it also produces a restrictive effect in relation to companies established in other Member States in that it constitutes an obstacle to their raising capital in the Member State concerned. That legislation cannot be justified by an objective difference in situation of such a kind as to justify a difference in tax treatment, in accordance with Article 73d(1)(a) of the Treaty. In relation to a tax rule designed to attenuate the effects of double taxation – corporation tax and then a tax on income – of the profits distributed by the company in which the investment is made, shareholders who are fully taxable in the Member State concerned and receive revenue from capital from a company established in another Member State are in a situation comparable with that of shareholders who are likewise fully taxable in that Member State but receive revenue from capital from a company established in that same Member State. Moreover, in the absence of a direct link between the obtaining of the tax advantages at issue enjoyed by taxpayers resident in the Member State concerned on their domestic revenue from capital and the taxation of the companies’ profits by way of corporation tax, tax on the income of physical persons and corporation tax being in any case two distinct taxes which affect different taxpayers, and having regard to the fact that the aim pursued, namely the attenuation of an instance of double taxation, would not be affected in any way if one were also to give the benefit of that legislation to persons deriving revenue from capital originating in another Member State, it cannot be justified by the need to ensure the coherence of the tax system in question. Furthermore, in the absence of such a link, refusal to grant those tax advantages to the recipients of revenue from capital originating in another Member State cannot be justified by the fact that revenue from companies established in another Member State is subject to low taxation in that State. Nor can unfavourable tax treatment contrary to a fundamental freedom be justified by the existence of other tax advantages, even supposing that such advantages exist. A reduction in tax receipts cannot be regarded as an overriding reason in the public interest which may be relied on to justify a measure which is in principle contrary to a fundamental freedom. (see paras 20-22, 28, 31-32, 34-36, 38, 40, 42-43, 49, operative part 1-2)