Opinion of Mr Advocate General Saggio delivered on 10 June 1999. - Skatteministeriet v Bent Vestergaard. - Reference for a preliminary ruling: Højesteret - Denmark. - Freedom to provide services - Income tax - Taxable income - Deduction of expenses for professional training courses - Distinction according to the location of the courses. - Case C-55/98.



European Court reports 1999 Page I-07641



Opinion of the Advocate-General

Introduction

1 By order of 18 February 1998, the Højesteret (Supreme Court), Denmark, referred for a preliminary ruling two questions concerning the interpretation of Articles 6 and 49 of the EC Treaty (now, after amendment, Articles 12 EC and 59 EC) on the freedom to provide services. The questions seek to ascertain whether those articles preclude Danish administrative practice and case-law establishing a presumption that expenditure incurred in taking part in professional training courses held in tourist locations abroad is not deductible from taxable income, whereas this presumption does not exist in the case of courses held in Denmark.

National law

2 The Danish provisions on items deductible from taxable income are to be found in State Tax Law No 149 of 10 April 1922, as subsequently amended. Article 4 of that Law provides that taxable income is to mean any earnings in the form of money or goods valuable in money. Article 6 then states that operating costs can be deducted from taxable income, that is expenses which, during the course of the year, have been incurred with a view to acquiring or maintaining income.

3 The specific procedures for deduction are laid down by administrative practice in circulars from the Tax Administration. As regards expenditure relating to professional training courses attended by employees, a 1996 circular states: `In the case where a professional conference or course is transferred to a foreign country (generally ordinary tourist resorts), this will have the effect of setting aside the right to deduct, unless the travel destination or course location can as such be treated as being justified on professional grounds ... . It is thus presumed that the holding of a course in a foreign tourist resort involves such a significant tourist element that the related expenses cannot be regarded as constituting deductible operating costs'.

4 When these costs are incurred by the employer, the fact that they are not deductible means that they are considered to form private savings and, consequently, are taxed as part of the employee's salary.

5 The aforementioned presumption has been repeatedly upheld in the Danish courts, which have stated that it can be rebutted if the taxpayer demonstrates, by providing further information on the content of the course and its duration in relation to the duration of the stay, that the place where the course was held was technically justified.

6 However, if the course is held in an ordinary tourist resort in Denmark, there is no presumption that it involves such a significant tourist element that the course expenditure cannot be treated as deductible. There is no instance, either in judicial rulings or in decisions made by the administrative authorities, of disallowance of the costs of any course held in an ordinary tourist resort in Denmark.

Facts of the case and questions submitted for a preliminary ruling

7 Bent Vestergaard is a Danish national who is a certified company auditor. He is the sole shareholder in the company Bent Vestergaard A/S, which is an auditing company. In the period from 3 to 10 October 1988, Mr Vestergaard attended a tax training course, held, to bring participants' knowledge up to date, on the island of Crete by a group of Danish auditors in collaboration with a travel agency. The duration of the course was three whole days and two half days and the entire stay in Greece totalled seven days. Mr Vestergaard took part in all the scheduled seminars. The costs of the course, amounting in total to 5 516 Danish crowns, was paid by the company Bent Vestergaard A/S, which then deducted them from its taxable income as charges for courses attended by one of its employees.

8 On 29 June 1993, the Landsskatteretten (the principal tax authority in Denmark) stipulated that the sum of 5 516 DKK paid for the course in Crete by Bent Vestergaard A/S could be deducted by the company not as training costs but as a salary bonus for Mr Vestergaard in his capacity as principal shareholder of the company.

9 Mr Vestergaard instituted proceedings against that decision of the Landsskatteretten before the Vestre Landsret (Western Regional Court), which, by judgment of 3 May 1995, found in his favour, stating by a majority of two judges out of three that the applicant had succeeded in overturning the presumption that the course had a significant tourist element. The Vestre Landsret therefore ruled that the costs of DKK 5 516 relating to the course were entirely deductible from Mr Vestergaard's taxable income.

10 Following this judgment, the Skatteministeriet (Danish Ministry of Fiscal Affairs) appealed to the Højesteret (Supreme Court). During the proceedings Mr Vestergaard advanced a new argument to the effect that the taxation of the expenditure on the course as part of his salary would be contrary to Articles 6 and 59 of the Treaty. In view of this new argument, the Højesteret decided to stay proceedings and submit the following two questions to the Court for a preliminary ruling:

`(1) Is it in accordance with Articles 6 and 59 of the EC Treaty for Danish case-law (see the judgment of the Højesteret of 19 October 1994, published in the Ugeskrift for Retsvaesen 1994, page 970) to apply a presumption that, in cases in which a course is held in an ordinary tourist resort outside Denmark and the course location cannot, as such, be justified on professional grounds, the course involves such a significant tourist element that the costs of the course cannot be treated as constituting deductible operating costs?

(2) If the answer is in the negative, can the national tax system, as described above ... be justified by reference to the case-law of the Court of Justice, in particular Case C-204/90 Bachmann v Belgium and Case C-250/95 Futura Participations and Singer v Administration des Contributions?'

The first question referred for a preliminary ruling

11 By the first question it has referred for a preliminary ruling, the national court asks whether an administrative practice and national case-law that apply a presumption that costs incurred in taking part in professional courses held in ordinary tourist resorts abroad are not be deductible from taxable income is to be considered incompatible with the prohibition of discrimination in the matter of freedom to provide services, laid down in Article 49 (ex Article 59) of the EC Treaty and, more generally, with the prohibition of all discrimination based on nationality, laid down in Article 12 (ex Article 6) of the EC Treaty.

12 First, some clarification is required. With regard to the reference made by the national judge to Article 12 (ex Article 6) of the EC Treaty, according to case-law which is now settled, (1) this article can be applied independently only in those situations governed by Community law for which there are no specific rules. In matters of freedom to provide services, the prohibition of discrimination on grounds of nationality is stated in Article 49 (ex Article 59) of the EC Treaty, which therefore represents a specific rule in relation to Article 12 (ex Article 6) of the EC Treaty. Consequently, reference will henceforth be made only to Article 49 (ex Article 59) of the EC Treaty.

13 The subject-matter of this case again concerns direct taxation. In this connection, the Court has stated on several occasions that, `... although as Community law stands at present, direct taxation does not as such fall within the purview of the Community, the powers retained by the Member States must nevertheless be exercised consistently with Community law.' (2)

This means that when, as in this case, the tax rules of a Member State treat taxpayers differently for the purposes of determining the taxable income solely because they receive a service in another Member State, it is necessary to consider whether this practice violates the prohibition of discrimination stated in Article 49 (ex Article 59) of the EC Treaty, creating an obstacle to the free movement of services.

14 According to the Danish Ministry of Fiscal Affairs, there is no discriminatory element in the practice followed by the tax administration since, in principle, professional training organised in Denmark or in another Member State has the same fiscal advantages and affords the same possibilities for deduction. The only difference is that, if the course takes place abroad, the concrete assessment is subject to the presumption of non-deductibility. Referring to a principle already affirmed by the Court, according to which `... discrimination arises through the application of different rules to comparable situations or the application of the same rule to different situations,' (3) the Ministry states that the difference in treatment arises from the fact that a professional training course held in an ordinary tourist resort abroad cannot be put on the same footing as a training course in Denmark. In the latter case, the stay never exceeds the duration of the course and there are no exclusively tourist activities contained in the programme.

15 The Netherlands Government, intervening in the proceedings, agrees with the Danish Ministry in considering that the presumption of non-deductibility has the sole effect of placing the burden of proof upon the person concerned in order to obtain the deduction. In its opinion, this simply represents a slight increase in the burden of proof which, in principle, applies to all taxpayers and requires them to demonstrate their entitlement to deduct expenses from their taxable income. This slightly heavier burden, in this case, is justified by the fact that the presumption concerns only courses taking place in tourist locations of particular renown and which certainly have tourist appeal.

16 I cannot agree with those views. First, as regards the presumption of non-deductibility, the argument put forward by the Danish Ministry of Fiscal Affairs on the existence of a presumed difference between courses held in Denmark and those held abroad is not confirmed by the information set out in the order for reference. On the contrary, the order contains statements which lead to the opposite conclusion. In particular, it can be seen from the statements of the head of professional training of the Danish Association of Lawyers and Economists that when a course is organised, regardless of where it is to take place, account is always taken of the professional facilities and availability of services such as a sauna and swimming pool and that, usually, hotel complexes are chosen which are situated in known tourist locations. In addition, in this specific case, the organiser of the course in Greece stated that he had asked for estimates from both Danish and foreign tourist operators and that the final choice was made solely on the basis of the fact that the bid from Crete was the lowest.

We must therefore conclude that no proof has been put forward showing substantial differences between the features of courses held abroad and of courses held in Denmark, so that the two situations differ solely and simply in the location of the course.

17 Also with regard to the presumption of non-deductibility, we cannot share the opinion of the Netherlands Government, which, in emphasising the negligible adverse effect of the practice, appears to raise a question of de minimis. In fact, on this point the Court has stated on numerous occasions that `... the articles of the EEC Treaty concerning the free movement of goods, persons, services and capital are fundamental Community provisions and any restriction, even minor, of that freedom, is prohibited.' (4)

18 Finally, there is another aspect to consider. The Danish Ministry of Fiscal Affairs argues that, both in the case of courses held abroad and in the case of courses held in Denmark, the possibilities of deduction are in principle the same. This statement does not appear to correspond to reality. As the Danish case-law, cited by the same Ministry, shows, the only case in which a taxpayer succeeded in overturning the presumption of non-deductibility was one involving a professor of classical history who took part in a course in Greece. In that case, the Danish court decided that the deduction should be allowed as there was a professional reason for choosing the location where the course took place. Also significant on this point is the judgment given by the Højesteret on 19 October 1994 in a case concerning an electrician who had taken part in a course held in Majorca. As one of the judges said, the deduction had to be refused because the training was organised abroad in a place ordinarily frequented by tourists and that place was not justified as such by considerations of a professional nature.

19 From the above it is clear that overturning the presumption of non-deductibility is conditional upon demonstrating the existence of a direct link between the choice of the place where a training course takes place and the content of the course. In other words, as Mr Vestergaard argues, in order for the deduction to be allowed, it is necessary for the subject-matter of the course to be associated with places or specific circumstances which concern the Member State where the course is held. So, the deductibility of expenses incurred on professional courses held abroad depends almost exclusively on a requirement that does not exist when a course takes place in Denmark.

20 These observations lead to the conclusion that, in Denmark, taxpayers who decide to take part in a professional course abroad are at a disadvantage compared with those who choose to take part in courses held in Denmark, for at least two reasons. First, owning to the presumption of non-deductibility, in order to gain the right to deduction, taxpayers must undergo much more onerous procedures. Secondly, given that the granting of the deduction is subject to more restrictive assessment criteria, it is therefore less likely that it will be granted. It should be added that the possibility of a refusal of deduction has a quite considerable influence on taxpayers' choices. Impossibility of deducting expenses means that participation in courses organised abroad is more onerous, thus affecting the main advantage offered by these courses, namely particularly competitive prices.

21 As matters stand, there is no doubt that, even though it does not prevent taxpayers from participating in courses organised abroad, the Danish practice has a dissuasive effect by inducing taxpayers to favour courses held in Denmark. This situation inevitably has repercussions on service-providers who offer these services, giving an advantage to those who are established in Denmark and putting those established in other Member States at a disadvantage. It therefore constitutes a restriction of the freedom to provide services.

22 Here, I would recall that the Court has held that `... that freedom likewise precludes the application of any national legislation which has the effect of making the provision of services between Member States more difficult than the provision of services purely within one Member State.' (5) The Court has stated on several occasions that when a Member State treats taxpayers who use services abroad less favourably in regard to taxation, creating a deterrent effect which discourages them from using service-providers established in another Member State, the State in question is causing those providers a restriction of their freedom to provide services, which is incompatible, at least in principle, with Article 49 (ex Article 59) of the EC Treaty. The Court reached this conclusion for the first time in the Bachmann and Commission v Belgium cases. (6) In those cases, it considered a Belgian regulation which made it impossible to deduct sickness and invalidity insurance contributions and pension and life assurance contributions from taxable income when they were paid to companies which were not established in Belgium was contrary to Article 49 (ex Article 59). More specifically, in Bachmann, it stated that `provisions requiring an insurer to be established in a Member State as a condition of the eligibility of insured persons to benefit from certain tax deductions in that State operate to deter those seeking insurance from approaching insurers established in another Member State, and thus constitute a restriction of the latter's freedom to provide services.' (7)

23 More recently, in the Safir case, the Court stated that even slightly more burdensome administrative procedures should be considered liable to be a deterrent with regard to recipients of services. This case concerned the compatibility with the Treaty of Swedish tax provisions under which natural or legal persons domiciled or resident in Sweden who had taken out life assurance with companies not established in that State had to pay tax on premiums paid and be registered with a central body to which payments had to be declared. At the request of the policyholder and in particular circumstances, this body could grant exemption from payment of the tax or reduce it by half. As far as is relevant to the case now under discussion, the Court held: `First, unlike persons who have taken out capital life assurance with companies established in Sweden, persons so insured with companies not established in Sweden must register themselves and declare premium payments ... . It is true that such obligations cannot in themselves be regarded as being contrary to Community law. However, those obligations, combined with the need to follow a centralised procedure, may dissuade interested persons from taking out capital life assurance with companies not established in Sweden, since no particular action on their part would be called for if they took out such insurance with companies established in Sweden, the tax being levied in this case on the company. ... . Third, when a person holding a policy issued by a company not established in Sweden applies for an exemption from or reduction of tax on the premiums, Skattemyndigheten requires precise information concerning the income tax to which this company is subject, unless this authority already has such information. ... Such a requirement is particularly burdensome for the policyholder ... .' (8)

24 Finally, the conclusions reached by the Court in the Kohll case are, I think, particularly relevant, (9) even though that case was not concerned with fiscal provisions but with a Luxembourg regulation which made reimbursement of the costs of certain medical services provided by specialist doctors established in another Member State conditional upon authorisation from the national social security organisation. The Court confirmed that `while the national rules at issue in the main proceedings do not deprive the insured persons of the possibility of approaching a provider of services established in another Member State, they do nevertheless make the reimbursement of the costs incurred in that Member State subject to prior authorisation, and deny such reimbursement to insured persons who have not obtained that authorisation. Costs incurred in the State of insurance are not however subject to that authorisation. Consequently, such rules deter insured persons from approaching providers of medical services established in another Member State and constitute, for them and their patients, a barrier to the freedom to provide services.' (10)

25 The Kohll judgment introduced, I think, an important new aspect for consideration. The Court, in evaluating the negative consequences of the deterrent effect, not only recognises the existence of damage for service providers established in other Member States, but accepts that, from the point of view of recipients also, rules which discourage consultations with doctors exercising their profession in other Member States must be considered to be an obstacle to the free movement of services.

26 The principles established in case-law cited above appear to give an unambiguous answer to the first question: an administrative practice and case-law which introduce a presumption that the costs of participating in professional courses held in tourist resorts abroad are not deductible from taxable income is capable of restricting the free provision of services, both for providers established in another Member State and for recipients of those services. Therefore, this practice must be considered to be incompatible with Article 49 (ex Article 59) of the EC Treaty, at least in principle.

The second question referred for a preliminary ruling

27 By its second question, the national court asks whether the Danish practice, if it is capable of hindering the freedom to provide services, can be justified on the basis of Community case-law and in particular the judgments in Bachmann and in Futura Participations. (11)

28 In the two cases referred to by the referring court, the compatibility of national legislation with the principle of freedom to provide services was evaluated in the light of two overriding grounds of general interest: the effectiveness of fiscal supervision and safeguarding the cohesion of tax systems. More specifically, in Bachmann, which concerned a Belgian regulation making the possibility of deducting sickness and invalidity contributions or pensions from taxable income conditional upon those contributions being paid to companies having their registered office in that State, the Court examined whether the rules in question could be justified in view of the need to guarantee effective fiscal supervision or to protect the cohesion of the Belgian tax system. Futura Participations, however, concerned Luxembourg rules which made the possibility of carrying forward losses incurred by the branch of a non-resident taxpayer subject to the condition that the losses had to be economically linked to the income earned in that State and that the branch had to keep its accounts in accordance with Luxembourg rules. In that case, the provisions in question were analysed only in the light of the requirement to guarantee effective fiscal supervision.

29 First of all, as in the case of all the fundamental freedoms, the Treaty allows derogations from the freedom to provide services only exceptionally and only in specific cases. Article 46 (ex Article 56) of the EC Treaty, to which Article 55 (ex Article 66) of the EC Treaty refers, provides that national regulations which lay down a special system for foreigners are compatible with Community law only if they are justified for reasons of public policy, public safety and public health. As the Court has frequently stated, this rule must be interpreted restrictively, excluding, in particular, the possibility of any exceptions of an economic nature. (12) In view of this case-law, it must certainly be accepted that, in the present case, the reasons mentioned in Article 46 (ex Article 56) of the EC Treaty cannot be invoked.

30 Moreover, for some time now, the Court has also extended to services its case-law on protection of overriding requirements. It has recognised that, where there is no harmonisation of laws, national rules which are indiscriminately applicable to nationals of all the Member States and which involve a restriction on the freedom to provide services must be considered to be compatible with Article 49 (ex Article 59) of the EC Treaty if they are justified by overriding grounds of public interest. (13) To invoke these grounds, therefore, it is necessary that the national rules refer, at least formally, to all Community nationals and that the discrimination, in this case relating to the origin of the service, is only an indirect consequence of their application. The rules must also be suitable for securing the attainment of the objective which they pursue and not go beyond what is necessary to attain it. (14)

However, it is noticeable that, in matters of services, the Court has shown some hesitation in applying this case-law and uses criteria which are not always unambiguous to establish whether the national provisions in question were applicable indiscriminately or not and, therefore, indirectly or directly discriminatory. While, on one hand, it considers national regulations providing for different systems depending on the origin of the service as formally discriminatory, (15) it is also true that in Svensson (16) it considered as such a Luxembourg provision which made the granting of a housing benefit, consisting of an interest rate subsidy, subject to the requirement that the loans intended to finance the construction, acquisition or improvement of the housing were taken out with banks established in Luxembourg. (17) At the same time, however, the Court also looked at the possibility of the Luxembourg regulation being justified on the basis of overriding requirements and in particular the need to ensure cohesion of the tax system.

At all events, as regards more specifically the case now before us, even if we were to favour the less rigid interpretation and accept that the Danish practice engenders only indirect discrimination since, from the formal point of view, it covers all taxpayers established or domiciled in the State, where the application or not of the presumption of deductibility depends on the place where they received the service, the conclusion which should be reached would not change. In fact, this practice is incompatible with Article 49 (ex Article 59) of the EC Treaty since, in my view, the overriding requirements to which the national court refers do not justify it.

31 As regards the overriding requirement of the effectiveness of fiscal supervision, the starting premiss, shared by all the parties, must be that Council Directive 77/799/EEC concerning reciprocal assistance between the competent authorities of Member States with regard to direct taxation is relevant in the present case. (18) This directive, which aims to curb fraud and tax evasion, requires the financial administrations of the Member States to exchange relevant information to allow the correct assessment of tax on the income and assets of their respective taxpayers.

32 According to the Danish Ministry of Fiscal Affairs, the presumption of non-deductibility for expenditure incurred on courses held abroad is necessary to prevent holidays taken under the veil of training courses from being improperly financed by the State through deductions. The objective of the presumption, therefore, is to oblige the taxpayer to provide all information necessary to show that any training undergone abroad has no tourist purposes. The Ministry also emphasises that to achieve this aim the exchange of information between national fiscal authorities, provided for in Directive 77/799/EEC, is not sufficient since the Danish tax administration has to be able to assess the nature of the training carried out abroad and its duration in relation to that of the entire stay in the light of the national regulations and case-law. This means that such an activity can only be carried out by the Danish fiscal authorities.

33 Mr Vestergaard and the Commission, however, state that the conditions for invoking the overriding requirement of effectiveness of fiscal supervision are not fulfilled in this case. The Commission, in particular, states that the order for reference provides no information to justify the fact that a presumption of non-deductibility for certain types of expenditure could be considered necessary to avoid fiscal abuse. Mr Vestergaard also argues that Danish law on fiscal supervision allows the taxpayer who took part in training either in Denmark or abroad to be asked for proof and that the same law also allows the fiscal authorities to request information from the persons organising the training. Finally, Mr Vestergaard points out that, in the case of courses which take place abroad, all relevant information can be requested from the competent authorities of other Member States on the basis of Directive 77/799/EEC.

34 This last position seems to me to be the most convincing. In my view, too, a presumption of non-deductibility such as that in question cannot be justified by the type of requirement which the Danish Ministry declares that it wishes to satisfy by imposing it.

35 First of all, as can now be seen in settled case-law, (19) all the information which a Member State may need to assess the taxable income of its own taxpayers and which concerns activities carried out in other Member States can be obtained from the fiscal authorities of those Member States on the basis of the system of cooperation created by the directive mentioned above. In addition, the Court has stated that, if this cooperation is not sufficient, national rules such as those now in question could still be considered to be discriminatory since the fiscal authorities could still ask the taxpayers for all the proof they think necessary to assess whether or not to allow specific fiscal advantages. (20) Finally, I cannot accept the objections raised by the Danish Ministry of Fiscal Affairs concerning the applicability of the directive in question. For example, information concerning the aims of the course and the presence of any elements of a tourist nature which it considers it must know in order to be able to assess satisfactorily the nature of the training undergone abroad by the taxpayer do not present aspects such as would escape the considerations stated in the case-law cited above.

36 In conclusion, therefore, it must be concluded that a rule which establishes a presumption that expenses incurred in participating in training courses held abroad are not deductible from taxable income cannot be justified by the requirement of effective fiscal supervision since it is not necessary to achieve the stated objective.

37 The second overriding requirement is the safeguarding of fiscal cohesion. The Danish Ministry of Fiscal Affairs makes only a brief reference to this in the last part of its observations. However, given that this requirement was invoked in one of the judgments referred to by the referring court and that both the Commission and Mr Vestergaard rely on this case-law, I consider it necessary, for the sake of completeness, to make some observations on this point.

The concept of fiscal cohesion as an overriding requirement was defined for the first time in the Bachmann judgment. In this regard, the Court recognised that ` ... there exists under the Belgian rules a connection between the deductibility of contributions and the liability to tax of sums payable by the insurers under pension and life assurance contracts ... . It follows that in such a tax system, the loss of revenue, resulting from the deduction of life assurance contributions from total taxable income - which includes pensions and insurance payable in the event of death - is offset by the taxation of pensions, annuities or capital sums payable by the insurers. Where such contributions have not been deducted, those sums are exempt from tax. The cohesion of such a tax system ... presupposes therefore that, in the event of a [Member State] being obliged to allow the deduction of life assurance contributions paid in another Member State, it should be able to tax sums payable by insurers.' (21)

38 After the Bachmann judgment, the Court was careful to clarify the conditions required in order for the overriding requirement of safeguarding fiscal cohesion to be invoked. In particular, in Svensson (22) and Asscher (23) it stated that there must be a direct link between taxation and deduction which takes the form of offsetting the sums received by the State following taxation and those returned to the taxpayer in the form of deduction.

39 With regard to the case now under consideration, it is sufficient to say that the conditions laid down in the case-law I have just described are not present in any way here. There is no taxation which can be considered to be directly correlated to the deduction provided for in the Danish rules on expenses incurred on professional training courses.

40 In view of the foregoing, I propose that the two questions referred to the Court for a preliminary ruling be answered as follows:

(1) Article 49 (ex Article 59) of the EC Treaty precludes rules such as the Danish rules under which there is a presumption that a professional training course held in an ordinary tourist location abroad, where the choice of this location is not justified on professional grounds, involves such a significant element of tourism that the expenses relating to the training cannot be considered as constituting operating costs deductible from taxable income.

(2) A national taxation system such as described in point (1) above cannot be justified on the grounds of the overriding requirements to which the case-law of the Court of Justice refers, in particular the judgments in Case C-204/90 Bachmann and Case C-250/95 Futura Participations.

(1) - See Case 305/87 Commission v Greece [1989] ECR 1461, at paragraphs 12 and 13; Case C-419/92 Scholz [1994] ECR I-505, at paragraph 6; Case C-193/94 Skanavi and Chryssanthakopolous [1996] ECR I-929, at paragraph 20; Case C-18/93 Corsica Ferries [1994] ECR I-1783; Case C-379/92 Peralta [1994] ECR I-3453, at paragraph 18; Case C-131/96 Mora Romero [1997] ECR I-3659, at paragraph 10; Case C-336/96 Gilly [1998] ECR I-2793, at paragraph 37.

(2) - Case C-118/96 Safir [1998] ECR I-1897, at paragraph 21. See also Case C-279/93 Schumacker [1995] ECR I-225, at paragraph 21, and Case C-175/88 Biehl [1990] ECR I-1779, at paragraph 12.

(3) - Case C-80/94 Wielockx [1995] ECR I-2493, at paragraph 17.

(4) - Case C-49/89 Corsica Ferries France I [1989] ECR 4441, at paragraph 8.

(5) - Case C-381/93 Commission v France [1994] ECR I-5145, at paragraph 17.

(6) - Case C-204/90 Bachmann [1992] ECR I-249, at paragraph 31, and Case C-300/90 Commission v Belgium [1992] ECR I-305, at paragraph 22.

(7) - Bachmann, cited above, at paragraph 31.

(8) - See Safir, cited above, paragraphs 26 and 28.

(9) - Case C-158/96 Kohll [1998] ECR I-1931, at paragraphs 34 and 35.

(10) - This interpretation, as remodelled by Advocate General Tesauro in his Opinion in the Kohll case, C-158/96, and the Decker case, C-120/95 (ECR I-1834, at paragraphs 40 to 43), seems to be based on the Luisi and Carbone judgment in which it was held that `in order to enable services to be provided, the person providing the service may go to the Member State where the person for whom it is provided is established or else the latter may go to the State in which the person providing the service is established ... . It follows that the freedom to provide services includes the freedom, for the recipients of services, to go to another Member State in order to receive a service there, without being obstructed by restrictions ... and that tourists, persons receiving medical treatment and persons travelling for the purpose of education or business are to be regarded as recipients of services' (Joined Cases 286/82 and 26/83 Luisi and Carbone [1984] ECR 377, at paragraphs 10 to 16). In particular with regard to the Kohll case, the Advocate General stated that the regulation under discussion produced two types of discrimination. The first and main one concerned the different treatment given to patients as recipients of services. The second, a corollary of the first, consisted of the different treatment to which providers established in another Member State were in fact subject.

(11) - Case C-204/90, cited above, and Case C-250/95 Futura Participations and Singer [1997] ECR I-2471.

(12) - See Case 352/85 Bond van Adverteerders [1988] ECR 2085, at paragraph 34, and Case C-288/89 Gouda [1991] ECR I-4007, at paragraph 11.

(13) - Case C-154/89 Commission v France [1991] ECR I-659, at paragraphs 14 and 15; Gouda, cited above, at paragraphs 11 and 12; Case C-76/90 Säger [1991] ECR I-4221, at paragraph 15.

(14) - Case C-55/94 Gebhard [1995] ECR I-4165, at paragraph 37.

(15) - See Bond van Adverteerders, cited above, at paragraph 32; Case C-211/91 Commission v Belgium [1992] ECR I-6757, at paragraph 11; Gouda, cited above, at paragraph 11, and Case C-17/92 Federación de Distribuidores Cinematográficos [1993] ECR I-2239, at paragraph 13.

(16) - Case C-484/93 Svensson and Gustavsson [1995] ECR I-3955, at paragraph 15.

(17) - In this case, the Court did not reconstruct the consequences of the rules in question, departing from the deterrent effect it produced with regard to the insured persons-recipients of the services (as, however, Advocate General Elmer did in his Opinion, ECR 1995, I-3955, points 14-18, stating that the Luxembourg regulation implied only indirect discrimination), but considered the existence of discrimination in regard to the establishment sufficient grounds for declaring the regulation justifiable only in the light of the exceptions stated in Article 46 (ex Article 56) of the EC Treaty.

(18) - OJ 1977 L 336, p. 15. This directive was subsequently amended by Council Directives 79/1070/EEC (OJ 1979 L 331, p. 8) and 92/12/EEC (OJ 1992 L 76, p. 1).

(19) - Commission v Belgium, cited above, at paragraph 10. Case C-1/93 Halliburton Services [1994] ECR I-1137, at paragraph 22; Schumacker, cited above, at paragraph 45; Wielockx, cited above at paragraph 26, and Futura Participations, cited above, at paragraph 41.

(20) - Bachmann, cited above, at paragraph 20, and Commission v Belgium, cited above, at paragraph 13.

(21) - Bachmann, cited above, at paragraphs 21 to 23.

(22) - Svensson, cited above, at paragraphs 16 to 18.

(23) - Case C-107/94 Asscher [1996] ECR I-3089, at paragraphs 56 to 60. See also Case C-264/96 ICI [1998] ECR I-4695, at paragraph 29.