Case C‑48/15

État belge, SPF Finances

v

NN (L) International SA

(Request for a preliminary ruling from the cour d’appel de Bruxelles)

‛Reference for a preliminary ruling — Direct taxation — Free movement of capital — Freedom to provide services — Directive 69/335/EEC — Articles 2, 4, 10 and 11 — Directive 85/611/EEC — Articles 10 and 293 EC — Annual tax on undertakings for collective investment — Double taxation — Penalties applicable to collective investment undertakings governed by foreign law’

Summary — Judgment of the Court (Second Chamber), 26 May 2016

Freedom to provide services — Restrictions — Tax legislation — National legislation laying down an annual tax on undertakings for collective investment — Possibility to penalise the defaulting undertakings for collective investment governed by foreign law by a prohibition to market units in the Member State concerned in the future — Lack of such a penalty for undertakings for collective investment governed by national law — Not permissible

Freedom of establishment — Free movement of capital — Restrictions — Tax legislation — National legislation laying down an annual tax on undertakings for collective investment — Application of the tax to undertakings for collective investment governed by national law and to those governed by foreign law — Lawfulness

See the text of the decision. (see para. 21)

Articles 2, 4, 10 and 11 of Directive 69/335 concerning indirect taxes on the raising of capital, as amended by Directive 85/303, must be interpreted as not precluding legislation of a Member State imposing an annual tax on undertakings for collective investment, which makes undertakings for collective investment governed by foreign law marketing units in that Member State subject to that tax. Such an annual tax does not correspond to any of the transactions subject to capital duty pursuant to Article 4 of Directive 69/335 which are characterised by the transfer of capital or assets to a company with share capital in the taxing Member State or take form of an actual increase in the company’s capital or assets, which is obviously not the case with the tax on the net amounts invested in a Member State. Nor does such a tax come under those prohibited by Article 10 of Directive 69/335 since (i) it does not correspond to any of the taxable transactions listed in Article 4 of that directive, to which Article 10(a) and (b) of the directive referred, and (ii) it has no link with registration or any other formality required before the commencement of business within the meaning of Article 10(c) of that directive. Likewise, that tax by no means corresponds to any of the transactions subject to Article 11 of the directive. Consequently, that annual tax on undertakings for collective investment does not fall within the scope of Directive 69/335. That directive therefore does not preclude those undertakings governed by foreign law from being subject to such a tax. (see paras 25-27, operative part 1)

Directive 85/611 on the coordination of laws, regulations and administrative provisions relating to undertakings for collective investment in transferable securities (UCITS), read, where appropriate, in conjunction with Article 10 EC and Article 293, second indent, EC, must be interpreted as not precluding the legislation of a Member State imposing an annual tax on undertakings for collective investment, which makes undertakings for collective investment governed by foreign law marketing units in that Member State subject to that tax, provided that that legislation is applied in a non-discriminatory way. It is clear that the taxation of UCITS did not fall within the area governed by Directive 85/611, which did not contain any provision relating to that area. Nevertheless, Article 44(3) of that directive required that the laws, regulations and administrative provisions applicable in a Member State to UCITS which did not fall within the field governed by that directive had to be applied in a non-discriminatory way. (see paras 32, 34, operative part 2)

Article 293 EC is not intended to lay down a legal rule directly applicable as such, but merely defines a number of matters on which the Member States are to enter into negotiations with each other so far as is necessary. Although the abolition of double taxation within the European Union is thus included among the objectives of the Treaty, it is clear from the wording of that provision that it cannot itself confer on individuals any rights on which they might be able to rely before their national courts. Similarly, Article 10 EC, which sets out a general obligation of the Member States, cannot be interpreted as giving rise to any independent obligations on Member States beyond those arising from Articles 49/EC, 56/EC and 293 EC. (see para. 38)

Where, in the context of the examination of the validity of a national measure with EU law, that measure concerns both the freedom to provide services and the free movement of capital, the Court will in principle examine it in relation to only one of those two freedoms if it appears, in the circumstances of the case, that one of them is entirely secondary in relation to the other and may be considered together with it. (see para. 39)

Article 56 EC must be interpreted as not precluding the legislation of a Member State imposing an annual tax on undertakings for collective investment which makes undertakings for collective investment governed by foreign law marketing units in that Member State subject to that tax. The measures prohibited by Article 56(1) EC, as restrictions on the movement of capital, include those which are such as to discourage non-residents from making investments in a Member State or to discourage that Member State’s residents from doing so in other States. That is not the case of an annual tax on undertakings for collective investment which applies without distinction to all those undertakings, irrespective of whether they are governed by national law or foreign law, the only objective difference between situations of those two categories of undertakings for collective investment, in terms of their liability to that tax, residing in the fact that, for undertakings for collective investment governed by foreign law, that annual tax is in addition to the taxation to which they may be subject in the Member State in which they are established. In that regard, in the absence of harmonisation at EU level, the disadvantages which could arise from the parallel exercise of tax competences by different Member States, to the extent that such an exercise is not discriminatory, do not constitute restrictions on the freedom of movement. Moreover, the Member States are not obliged to adapt their own tax systems to the different tax systems of other Member States, in order inter alia to eliminate double taxation. (see paras 44, 46, 47, 49, operative part 3)