CELEX: 62018CC0482
Language: en
Date: 2019-09-12 00:00:00
Title: Opinion of Advocate General Kokott delivered on 12 September 2019.#Google Ireland Limited v Nemzeti Adó- és Vámhivatal Kiemelt Adó- és Vámigazgatósága.#Request for a preliminary ruling from the Fővárosi Közigazgatási és Munkaügyi Bíróság.#Reference for a preliminary ruling — Freedom to provide services — Article 56 TFEU — Restrictions — Tax provisions — Tax on advertising activities based on turnover — Obligations relating to registration with a tax authority — Principle of non-discrimination — Fines — Principle of proportionality.#Case C-482/18.

OPINION OF ADVOCATE GENERAL
   KOKOTT
   delivered on 12 September 2019 (
         1
      )
   
      Case C‑482/18
   
   Google Ireland Limited
   v
   Nemzeti Adó- és Vámhivatal Kiemelt Adó- és Vámigazgatósága
   
      (Request for a preliminary rulingfrom the Fővárosi Közigazgatási és Munkaügyi Bíróság (Budapest Administrative and Labour Court, Hungary))
   
   (Request for a preliminary ruling — Fundamental freedoms — Freedom to provide services — Restrictions and discrimination — Substantive tax law and law of tax procedure — Turnover-based tax on advertisements — Taxation of foreign activities in the Hungarian language — Principle of territoriality in EU law — Obligation to register for tax purposes — Different registration procedures for nationals and foreigners — Penalties in the case of non-registration)
   
      I. Introduction
   
   
            1.
         
         
            In this case the Court is concerned primarily with matters relating to the law of tax procedure, in particular penalisation of infringements of obligations to register for tax purposes, which serve to establish and enforce a tax liability. In Hungary these penalties can reach a significant order of magnitude (a total of up to 1 billion Hungarian forints (HUF), or around EUR 3 million) in order to compel taxpayers not yet registered in Hungary to submit a tax declaration. There are certain procedural obstacles in connection with this penalisation which make it difficult for the taxpayer to evade the fine, by contesting it in court proceedings for example. Both aspects affect in particular taxpayers who are resident abroad and have not yet generated any revenue taxable in Hungary. Questions therefore arise in connection with the fundamental freedoms.
         
      
            2.
         
         
            In addition, the Court might also ask the question whether Hungary is not prevented per se by EU law from levying a tax on foreign (European) undertakings when those undertakings are not resident in Hungary. The tax at issue covers undertakings which merely offer services in Hungarian on the internet, without the services necessarily being ‘consumed’ in Hungary. It is also conceivable that the services are received by persons with Hungarian language skills who live outside Hungary, for example the Hungarian minority living in Romania. It must therefore be clarified whether EU law requires a territorial link for a national tax and, if so, whether this is provided by a connection to the Hungarian language.
         
      
            3.
         
         
            This latter point is a new question, the answer to which may have significant repercussions on the tax competences of the Member States. It also arises in a similar way, for example, in connection with an Italian tax on transactions for the foreign trading of derivatives based on securities issued by an undertaking resident in Italy. (
                  2
               )
         
      
      II. Legal framework
   
   
      
         A.
       
         EU law
      
   
   
            4.
         
         
            The relevant rules of EU law can be found in the TFEU and the Charter of Fundamental Rights of the European Union (‘the Charter’).
         
      
      
         B.
       
         National law
      
   
   
            5.
         
         
            The dispute has arisen against the background of the a reklámadóról szóló 2014. évi XXII. törvény (Law XXII of 2014 on the taxation of advertisements, ‘the Law on the taxation of advertisements’) in the version applicable in 2016.
         
      
            6.
         
         
            The tax on advertisements is a turnover-based tax and was introduced into Hungarian law with the objective of applying the principle of adequate burden sharing.
         
      
            7.
         
         
            Article 2(1)(e) of the Law on the taxation of advertisements stipulates that the publication of paid advertisements on the internet is to be subject to the tax on advertisements where the advertisements are mainly in Hungarian or mainly on internet pages that are in Hungarian. Under Article 5(3) of the Law on the taxation of advertisements, the tax applied in the year at issue only to undertakings with an annual turnover subject to the tax on advertisements of more than HUF 100 million and it thus has a progressive rate structure.
         
      
            8.
         
         
            Article 2(2)(b) of the Law on the taxation of advertisements states that the commissioning of the publication of an advertisement is to be subject to the tax on advertisements unless the customer who has commissioned the publication of the advertisement:
            
                     (ba)
                  
                  
                     has requested the taxpayer referred to in Article 3(1) to issue the declaration referred to in Article 3(3) and can provide reliable evidence that he has done so; and
                  
               
                     (bb)
                  
                  
                     has not received the declaration requested under paragraph (ba) within 10 working days of receipt of the invoice or accounting document concerning publication of the advertisement; and
                  
               
                     (bc)
                  
                  
                     has submitted a declaration to the National Tax and Customs Authority regarding the situation referred to in paragraph (ba), the person who has published the advertisement and the payment for publication.
                  
               
      
            9.
         
         
            Under Article 3(1) of the Law on the taxation of advertisements, any person who undertakes the publication of paid advertisements on the internet, where the advertisements are mainly in Hungarian or mainly on internet pages that are in Hungarian, is a ‘taxpayer irrespective of place of residence’.
         
      
            10.
         
         
            Article 7/B(1) of the Law on the taxation of advertisements states that a person who is a taxpayer within the meaning of Article 3(1) and who is not registered with the National Tax Authority as a taxpayer for the purposes of some form of tax must register by submitting the relevant form supplied by the National Tax Authority within 15 days of commencing an activity that is subject to the tax under Article 2(1).
         
      
            11.
         
         
            Under Article 7/B(2) of the Law on the taxation of advertisements, where a taxpayer fails to comply with the obligation to register under Article 7/B(1) — in addition to ordering him to comply — the National Tax Authority is to impose an initial fine of HUF 10 million for failure to comply.
         
      
            12.
         
         
            Article 7/B(3) of the Law on the taxation of advertisements permits the National Tax Authority, in the case of repeated breaches of the obligation, to impose a fine for failure to comply of three times the amount of the previous fine.
         
      
            13.
         
         
            Article 7/B(4) of the Law on the taxation of advertisements provides that the National Tax Authority is to issue daily decisions confirming breach of the obligation to register under Article 7/B(1). These decisions are to be final and enforceable from the moment when notice of them is served and may be contested through administrative court proceedings. In those proceedings, only documentary evidence is to be admissible and the court must reach its decision without holding a hearing.
         
      
            14.
         
         
            Under Article 7/B(5) of the Law on the taxation of advertisements, the fine for failure to comply may be reduced without limitation if the taxpayer complies with his obligation to register when first ordered by the Tax Authority.
         
      
            15.
         
         
            Article 7/D of the Law on the taxation of advertisements states that the total maximum amount of the fine for failure to comply which the National Tax Authority may impose on the same taxpayer under Article 7/B is HUF 1 billion.
         
      
            16.
         
         
            In the case of companies whose registered office is in Hungary, Article 17(1)(b) of the Law on general tax procedures states that the taxpayer automatically satisfies the obligation to register with the National Tax and Customs Authority when he submits an application for registration (a completed form) plus attachments, together with an application for a tax identification number, to the court with jurisdiction with respect to the registry.
         
      
            17.
         
         
            Under Article 172 of the Law on general tax procedures, if a taxpayer fails to comply with the notification obligation (to register or to report any changes), the requirement to disclose data or to open a bank account or the requirement to submit a tax declaration, he may be fined either HUF 500000 or HUF 1000000.
         
      
            18.
         
         
            Article 172(7) of the Law on general tax procedures stipulates that where a penalty is imposed for non-compliance with the obligation to register, notify, report changes, submit a tax declaration, disclose data or open a bank account, or where Article 172(1)(f) applies, the Tax Authority shall — and in the case of non-compliance with the obligation to issue receipts, may — simultaneously order the taxpayer to comply by a prescribed deadline. If the taxpayer fails to meet the deadline laid down in the earlier decision, except in the case of the fine for failure to comply under Article 172(1)(f), the fine imposed is to be doubled and a new payment deadline prescribed.
         
      
      III. Main proceedings
   
   
            19.
         
         
            The applicant is a capital company registered in Ireland under the name ‘Google Ireland Limited’ (‘Google’). Its registered office and head office are in Dublin. In 2016 it carried on activities that were subject to the tax on advertisements. However, Google has thus far failed to satisfy its obligation to register on commencement of a taxable activity in accordance with Article 7/B(1) of the Law on the taxation of advertisements.
         
      
            20.
         
         
            In a decision dated 16 January 2017, the Tax Authority imposed on Google an initial fine of HUF 10 million (currently equivalent to approximately EUR 30600) for failure to comply with the obligation to register for the purposes of the tax on advertisements laid down in Articles 7/B to 7/D of the Law on the taxation of advertisements, followed by a daily fine for failure to comply which tripled the amount of the earlier fine, bringing the total amount of the fine to HUF 1 billion (currently equivalent to approximately EUR 3.06 million).
         
      
            21.
         
         
            By deliberately disregarding its tax obligations, Google obtained a competitive advantage over persons established in Hungary who publish advertisements and comply with their tax obligations under the legislation. The fact that Google has been in breach of its obligations to pay the tax in Hungary since 1 January 2015 is such a serious breach that it is sufficient justification for applying a large fine, which encourages compliance with tax obligations.
         
      
            22.
         
         
            Google has brought an action against the decisions of the Tax Authority, requesting that the decisions be annulled, primarily on the basis of the amount of the fine. The fine is much (as much as 2000 times) higher than for domestic undertakings which are not subject to this specific obligation to register, but only a general obligation. In addition, domestic undertakings are registered automatically on being entered in the Companies Register, with the result that the penalty applies only to foreign persons. Furthermore, their right to an effective remedy is also infringed given that the decisions relating to the fine were final and enforceable from the moment when notice of them was served, that there is limited scope to submit evidence, and that foreign persons have extraordinarily little time in which to prepare properly for the proceedings and to exercise their rights.
         
      
            23.
         
         
            The referring court must now decide on the action for annulment brought against the fine notice.
         
      
      IV. Request for a preliminary ruling and procedure before the Court
   
   
            24.
         
         
            By decision of 13 July 2018, the referring court decided to make an order for reference pursuant to Article 267 TFEU and referred the following questions to the Court for a preliminary ruling:
            
                     ‘(1)
                  
                  
                     Should Articles 18 and 56 TFEU and the prohibition on discrimination be interpreted as precluding a Member State’s tax legislation in which the penalty provisions require, for breach of the obligation to register for the purposes of an advertisement tax, the imposition of a fine for failure to comply, the total amount of which, for companies not established in Hungary, can be as much as 2000 times greater than the amount of the fine for companies established in Hungary?
                  
               
                     (2)
                  
                  
                     Can the penalty described in the previous question, which involves a markedly large sum and is punitive in nature, be considered as capable of discouraging service providers who are not established in Hungary from providing services in that country?
                  
               
                     (3)
                  
                  
                     Should Article 56 TFEU and the prohibition on discrimination be interpreted as precluding legislation under which, for undertakings established in Hungary, the obligation to register is satisfied automatically, without making an explicit application, through the allocation of a Hungarian tax identification number as part of the process of registering with the Companies Registry, irrespective of whether or not the undertaking publishes advertisements, whereas for undertakings that are not established in Hungary but that publish advertisements in that country it is not satisfied automatically, and instead they have specifically to comply with the obligation to register, and can be subject to a specific penalty if they fail to do so?
                  
               
                     (4)
                  
                  
                     If the answer to the first question is in the affirmative, should Article 56 TFEU and the prohibition on discrimination be interpreted as precluding a penalty such as the one at issue in the main proceedings, imposed for breach of the obligation to register for the purposes of an advertisement tax, in so far as the aforesaid legislation may be contrary to that article?
                  
               
                     (5)
                  
                  
                     Should Article 56 TFEU and the prohibition on discrimination be interpreted as precluding a provision under which the decision to impose a fine on an undertaking established abroad is final and enforceable from the moment when notice of it is served, and the decision may be contested only through judicial proceedings in which the court may not hold a hearing and only documentary evidence is admissible, while fines imposed on undertakings established in Hungary may be contested in an administrative procedure and, moreover, the judicial proceedings are not restricted in any way?
                  
               
                     (6)
                  
                  
                     In view of the right to good administration established in Article 41(1) of the Charter, should Article 56 TFEU be interpreted as meaning that this obligation is not satisfied where the fine for failure to comply is imposed in the form of a daily fine, meaning that the amount of the fine is tripled while the service provider is still unaware of the earlier decision and is therefore unable to make good its omission before the imposition of the next fine?
                  
               
                     (7)
                  
                  
                     Should Article 56 TFEU, as read with the right to good administration in Article 41(1) of the Charter, the right to be heard in Article 41(2)(a) of the Charter, and the right to an effective remedy and to a fair trial in Article 47 of the Charter, be interpreted as meaning that these requirements are not satisfied where the decision cannot be contested in an administrative procedure and where, in the administrative court proceedings, only documentary evidence is admissible and the court cannot hold a hearing?’
                  
               
      
            25.
         
         
            In the proceedings before the Court, Google, Hungary, the Czech Republic and the European Commission submitted written observations on these questions and took part in the hearing on 4 June 2019.
         
      
      V. Legal assessment
   
   
            26.
         
         
            In the main proceedings Google is challenging a fine notice. The request for a preliminary ruling thus primarily concerns the compatibility of the Hungarian rules on fines in connection with non-registration of a taxpayer under the Law on the taxation of advertisements. This is, in turn, against the background of the fact that the Law on the taxation of advertisements declares that any person who publishes paid advertisements on the internet mainly in Hungarian or on mainly Hungarian internet pages is a taxpayer. The taxpayer’s residence is irrelevant in this regard such that foreign undertakings also carry on an activity taxable in Hungary where they earn money through Hungarian advertisements on the internet.
         
      
            27.
         
         
            The questions asked by the referring court can be divided into several groups. One question relates to the different registration systems for domestic and foreign taxpayers under the Law on the taxation of advertisements (Question 3 — see under B.), some questions to the amount of the penalty (Questions 1, 2, 4 and 6 — see under C.) and others to redress against a fine thus imposed (Questions 5 and 7 — see under D.).
         
      
            28.
         
         
            Although the national proceedings do not concern a tax notice and the referring court also has no doubts as to whether the tax is permitted by EU law, the extraterritorial scope of the chosen object of taxation (advertisements in Hungarian on the internet) was also raised as an issue at the hearing. Although the Court does not normally examine the choice of the object of taxation by the national legislature within the field of non-harmonised tax law, it seems justified in the present case to examine whether the tax on advertisements is permitted by EU law (see under A.). If the underlying tax were contrary to EU law, the fine notice based on it would possibly share the same fate.
         
      
      
         A.
       
         Lawfulness of the tax on advertisements under EU law
      
   
   
            29.
         
         
            The field of tax law falls in principle within the competence of the Member States. Exceptions under Article 113 TFEU are turnover tax, excise duties and other forms of indirect taxation. For this reason, there are only a few rules of EU law in the field of direct taxation. In particular, Article 114(2) TFEU excludes fiscal provisions and Article 115 TFEU permits only EU laws and regulations which directly affect the establishment or functioning of the internal market.
         
      
            30.
         
         
            Although the EU Commission has proposed a turnover-based digital services tax, (
                  3
               ) there is no need to determine whether such a tax would preclude the Hungarian tax on advertisements, as the EU legislature is still discussing the Commission proposal.
         
      
            31.
         
         
            However, the tax on advertisements could be unlawful under EU law for two other reasons. In the field of harmonised indirect taxation, this could follow from Article 401 of the VAT Directive. (
                  4
               ) Furthermore, when exercising their inherent tax competences, the Member States are nevertheless bound by primary law, here the fundamental freedoms in particular. (
                  5
               )
         
      
      1. Infringement of Article 401 of the VAT Directive?
   
   
            32.
         
         
            Article 401 of the VAT Directive makes clear that Member States may not introduce new taxes if they can be characterised as turnover taxes. Even if the referring court were correct in its view (
                  6
               ) that the tax on advertisements is a turnover-based consumption tax, Article 401 of the VAT Directive would not preclude such a tax, as I have already explained with respect to other turnover-based income taxes. (
                  7
               ) The tax on advertisements is also not a (general) turnover tax and is not designed to be passed on to the consumer.
         
      
            33.
         
         
            In this regard the classification of the tax on advertisements as a turnover-based consumption tax is not convincing. Rather, it is apparent from the conception of the Hungarian tax on advertisements that service providers are to be taxed directly. The intention is to tax the financial capacity of those undertakings and not the financial capacity of their customers. This is illustrated very clearly by the fact that the customers can discharge their tax liability by specifying the undertaking publishing the advertisement pursuant to Article 2(1)(b) of the Law on the taxation of advertisements. Accordingly, the special tax for advertising undertakings is similar in character to a special direct income tax, where ‘only’ the taxable amount is, rather than profit, the turnover generated within a certain period. It must thus be characterised as a direct income tax and is not therefore to be assessed having regard to Article 401 of the VAT Directive.
         
      
      2. Infringement of the fundamental freedoms?
   
   
            34.
         
         
            Consequently, there is at most an infringement of the fundamental freedoms. In this instance, there could be an infringement of the freedom to provide services under Article 56 TFEU because the turnover-based tax on advertisements is linked to the provision of advertising services in a given language and is levied irrespective of the undertaking’s place of establishment.
         
      
      (a) Standard of review for the freedom to provide services
   
   
            35.
         
         
            It is settled case-law that all measures which prohibit, impede or render less attractive the exercise of the freedom to provide services guaranteed by Article 56 TFEU are restrictions on that freedom. (
                  8
               ) In principle this covers cases of discrimination, but also non-discriminatory restrictions.
         
      
            36.
         
         
            However, in the case of taxes and duties it must be borne in mind that they constitute a burden per se and thereby always reduce the attractiveness of a service. An examination of taxes based on non-discriminatory restrictions would therefore make all national chargeable events subject to EU law and thereby seriously call into question the sovereignty of the Member States in tax matters. (
                  9
               ) This would run counter to settled case-law according to which the Member States are free, in the absence of harmonisation in the Union, to exercise their powers of taxation in that area. (
                  10
               )
         
      
            37.
         
         
            If the Member States’ powers of taxation recognised by the Court and the parliaments’ budgetary powers are not to be unduly restricted, national fiscal measures must therefore be assessed in principle only having regard to the prohibition of discrimination in respect of the fundamental freedoms. (
                  11
               )
         
      
            38.
         
         
            The Court has thus ruled on a number of occasions that Member States’ rules on the conditions and the level of taxation are subject to the Member States’ fiscal autonomy, provided the treatment of the cross-border situation is not discriminatory compared with the domestic situation. (
                  12
               )
         
      
            39.
         
         
            On closer inspection, this retraction of the intensity of review in tax law is in keeping with the idea that led the Court in its Keck ruling (
                  13
               ) to refrain from conducting a general review of restrictions. According to that judgment, non-discriminatory tax laws are not such as to hinder directly or indirectly, actually or potentially, trade between Member States, and thus the internal market. This holds so long as those provisions apply to all relevant traders operating within the national territory and also affect them in the same manner in fact.
         
      
      (b) Does discrimination exist?
   
   
            40.
         
         
            Accordingly, in this instance — that is to say, within the scope of the Member States’ autonomous powers of taxation — a restriction of the freedom to provide services requires, first, that two or more groups under comparison are actually treated differently. If so, the further question arises whether that unequal treatment of cross-border situations compared with purely domestic situations disadvantages the former.
         
      
            41.
         
         
            That is not the case here. The cross-border situation and the purely domestic situation are treated in the same way in respect of the tax on advertisements, as it is completely irrelevant where the provider has its registered office. If Google were resident in Hungary and operated the advertising business with Hungarian internet advertisements from there, Google would be subject to that tax to the same extent as if it generated the same turnover from its registered office in Ireland. In the absence of discrimination by the Law on the taxation of advertisements, the fundamental freedoms do not apply.
         
      
      (c) The limits of the autonomous powers of taxation
   
   
            42.
         
         
            Problems could arise from the point of view of EU law, however, because in this case some of the taxed services are possibly not used in Hungary (Hungarian advertisements targeted at the Hungarian-speaking population in Romania for example) and the taxpayer is not resident in Hungary (like Google). Doubts might arise as to whether Hungary is really acting within the scope of its (autonomous) powers of taxation recognised by the Court (see above, point 36 et seq.).
         
      
            43.
         
         
            It must thus be clarified whether EU law requires, in order for autonomous powers of taxation to be exercised, that the taxed activity is exercised or must be used in Hungary or whether the taxpayer must be resident in Hungary. I am not aware of any such requirement in EU law. Even in 2016 the Court did not make any mention of the objection of the absence of a territorial link in respect of a Belgian tax on foreign corporate forms. (
                  14
               )
         
      
            44.
         
         
            Nor can such a narrowly construed domestic link be derived from international law. For example, taxation based on nationality — as practised in the United States — is also a taxation system recognised in international law, even if the national is neither resident in the United States nor has provided any services there. As the Permanent Court of International Justice ruled in 1927, international law leaves States a wide measure of discretion which is only limited in certain cases for rules which relate to acts outside their territory. (
                  15
               ) The International Court of Justice later held, in a case relating to recognition of citizenship of another State for the exercise of diplomatic protection, that a sufficiently close connection (genuine link) was such a limit for the consideration of ‘external legislative powers’. (
                  16
               )
         
      
            45.
         
         
            In the light of these principles, it would thus appear to be objectionable in international law only for a State to tax any persons or transactions in the world to which it has no connection at all. There must therefore exist some reasonable link in order to be able to extend national tax laws to foreign situations and a fortiori to collect taxes from non-residents. (
                  17
               ) Normally there is no restriction on a State’s taxation of its residents, whilst taxation of non-residents is restricted to income generated in national territory (residence and source principle). Both are ultimately an expression of the principle of territoriality, which also applies to the place of business and the place of consumption.
         
      
            46.
         
         
            The fact that the taxed service might not be ‘consumed’ in Hungary is therefore immaterial where there is another link. Neither is this required by EU law, nor is it a general requirement in international law for the exercise of a State’s own tax competences. On the contrary, in income tax law many services in foreign territories are taxed only (or can be taxed only) because the taxpayer is resident in the State’s own territory. In addition, under Article 7(1) of the 2017 OECD Model Convention, (
                  18
               ) the place of residence and not the place in which services are provided is generally relevant for business profits.
         
      
            47.
         
         
            The fact that the taxpayer does not have to be resident in Hungary to be subject to the tax on advertisements is likewise immaterial. Some revenue connected with a certain place is taxed, in accordance with international law, in the State in which the property is situated and not in the State of residence. Accordingly, Article 13 of the 2017 OECD Model Convention, for example, also confers a power of taxation for capital gains on the State in which the property is situated.
         
      
      (d) Language as a sufficient territorial link
   
   
            48.
         
         
            Consequently, the only question is whether linking a tax to the language in which the service is provided can also be regarded as a sufficient territorial link (‘genuine link’). (
                  19
               ) I consider that this question can be answered in the affirmative in the present case.
         
      
            49.
         
         
            The idea behind the Hungarian tax on advertisements, as Hungary confirmed at the hearing, is clearly that Hungarian advertisements on the internet are directed primarily at Hungarian-speaking users who are for the large part located in Hungarian territory. Google thus generates revenue with the ‘help’ of the Hungarian population which is not, however, taxed in Hungary. If the internet had not been invented, the major share of that revenue could probably have been generated only by becoming established in Hungary, in which case Hungary could have simply levied income tax as appropriate. Should that competence cease to exist solely because technical progress creates new ways of generating revenue without being present in the Member State in question?
         
      
            50.
         
         
            I do not think so. The connection to the use of the country’s own official language provides a sufficient reasonable territorial link in principle. No one can deny that language forms an important part of national identity and is thus strongly connected with a State and its territory. There is no need here to consider the extent to which this also applies to English as a ‘universal’ language.
         
      
            51.
         
         
            Furthermore, EU law also links inter alia to the language used in determining jurisdiction, for example in Article 15(1)(c) of Regulation (EC) No 44/2001. In this connection, the Court has ruled that it may be concluded that the trader’s activity is directed to the Member State of the consumer’s domicile from use of a language other than the language generally used in the Member State in which the trader is established. (
                  20
               ) Use of the Hungarian language thus also indicates that Google’s activity is directed to Hungarian territory.
         
      
            52.
         
         
            It is immaterial that this territorial link does not always exist in each specific case because the same language may be used in other States (as by the Hungarian minority in Romania) since it comes under the legislature’s power of standardisation in tax law in particular. (
                  21
               ) That holds here in any case if the use of the State’s own official language in other countries is of secondary importance. It is also immaterial if the Hungarian user of the advertising service resides outside national territory. The ‘genuine link’ still exists in that case based on nationality.
         
      
            53.
         
         
            The above finding is also not affected by the fact that making reference to the specific consumers of Hungarian advertising through the internet users’ IP addresses possibly offers a more precise territorial link. Neither EU law nor international law prescribes the choice of the most precise connecting factor if one were to exist at all. In addition, reference to the IP address would be only an ancillary criterion, as the IP address can be concealed by users almost at will (using VPN clients for example). In addition, reference to an IP address is merely based on the presumption that in the majority of cases users are situated in the relevant country. The Hungarian rules are, in accordance with the view expressed by the Commission at the hearing, based on a similar, albeit somewhat cruder generalisation, according to which Hungarian advertisements on the internet are used, as a rule, by Hungarian nationals or persons living in Hungary.
         
      
            54.
         
         
            Even if Romania were to tax advertising services targeted at the Hungarian-speaking population living in its territory, with which there would therefore also be a ‘genuine link’, this would above all raise questions of double taxation. Such double taxation problems also arise, however, with the conventional connections (residence, activity, nationality) and do not call into question the powers of taxation of a State (here Hungary).
         
      
            55.
         
         
            The Court has held on many occasions that, 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. (
                  22
               ) 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. (
                  23
               )
         
      
      3. Conclusion
   
   
            56.
         
         
            Accordingly, Hungary was not prevented on the basis of EU law from introducing the tax on advertisements at issue.
         
      
      
         B.
       
         Question 3: obligations for the taxpayer to register
      
   
   
            57.
         
         
            By its third question, the referring court wishes to know, in essence, whether the freedom to provide services enjoyed by Google under Article 56 TFEU in conjunction with Articles 62 and 54 TFEU is infringed by the specific registration obligation under Article 7/B of the Law on the taxation of advertisements. This is against the background of the fact that an existing registration pursuant to other tax legislation (that is to say, another tax assessment) grants exemption from the specific registration obligation under Article 7/B of the Law on the taxation of advertisements.
         
      
            58.
         
         
            Here too, the applicable standard of review is the one outlined above (point 35 et seq.) for the fundamental freedoms in tax law, which is limited to a review of discrimination. The rules on the effective enforcement of a tax cannot be separated from the substantive rules governing the tax and, like these, fall within the Member States’ powers of taxation.
         
      
            59.
         
         
            The crucial question is therefore whether, on account of the specific registration obligation, there is unequal treatment between the purely domestic and the cross-border situation and thus whether domestic and foreign undertakings are treated differently.
         
      
            60.
         
         
            As was confirmed again in response to enquiries made at the hearing, domestic undertakings are also subject to the specific registration obligation if they are not yet registered for tax purposes in Hungary. The differentiation in Hungarian law is not therefore made according to whether the taxpayer is domestic or foreign. It is based solely on whether or not there has been a registration for tax purposes. Accordingly, there is no unequal treatment of the domestic situation in comparison with the foreign situation, but only unequal treatment of already registered and not yet registered taxpayers.
         
      
            61.
         
         
            There is no need to determine whether this might constitute indirect discrimination against foreign undertakings (for further detail see below under point 70 et seq.). The Court has already held that the obligation to register for tax purposes as a requirement for the exercise of tax competences is as such capable of justifying a restriction on the freedom to provide services. (
                  24
               ) Registration within 15 days after commencing an activity is not disproportionate as such, as the Commission asserts, in particular since obligations of notification and registration for tax purposes before commencing an activity are perfectly common and not unreasonable.
         
      
            62.
         
         
            Consequently, a specific registration obligation in connection with a special tax for not yet registered taxpayers is in any case justified as such under EU law.
         
      
      
         C.
       
         Questions 1, 2, 4 and 6: nature and amount of the special penalties
      
   
   
            63.
         
         
            The crucial question remains whether the special penalties connected with that specific registration obligation pursuant to Article 7/B of the Law on the taxation of advertisements infringe the freedom to provide services under Article 56 TFEU.
         
      
      1. Restriction of the freedom to provide services
   
   
      (a) Direct discrimination
   
   
            64.
         
         
            In this regard, too, there is, formally speaking, no unequal treatment between the purely domestic situation and the cross-border situation. All taxpayers not yet registered for tax purposes who fall within the scope of the tax on advertisements must be registered in the same way and are penalised in the same way if they fail to comply. All taxpayers already taxed in Hungary are exempt from that registration obligation and are not liable for any penalties. This applies equally to nationals and foreigners.
         
      
            65.
         
         
            This is not affected by the fact that a penalty for non-registration is ruled out per se for many Hungarian companies because they are also registered for tax purposes automatically on being entered in the Companies Register. This applies equally to both penalty mechanisms (under Article 7/B of the Law on the taxation of advertisements and under Article 127 of the Law on general tax procedures). Companies formed within and outside Hungary are not therefore comparable. The only comparison to be made is with not yet registered taxpayers who carry on paid activities in accordance with the Law on the taxation of advertisements.
         
      
            66.
         
         
            Thus, from a formal point of view, all taxpayers are treated equally within the Law on the taxation of advertisements. All already registered taxpayers are also treated equally. The only problem raised is that an infringement of the registration obligation for other taxes entails a different penalty from an infringement of the specific registration obligation under the Law on the taxation of advertisements.
         
      
            67.
         
         
            However, EU law does not require each infringement of a registration obligation for each tax to take the same form. From the point of view of EU law, completely different penalties can therefore be imposed if a person subject to VAT is not registered or if a person liable for income tax is not registered. Through the fundamental freedoms EU law merely prohibits less favourable treatment (discrimination) of the cross-border situation.
         
      
            68.
         
         
            If, however, a national generating advertising revenue who is not registered and a foreigner generating advertising revenue who is not registered are treated equally, that is not the case.
         
      
            69.
         
         
            Because it is not clear from the request for a preliminary ruling whether a national who concurrently infringes his obligation to register for income tax purposes is also penalised on the basis of the more severe penalties under Article 7/B of the Law on the taxation of advertisements or only on the basis of the less severe penalties under Article 172 of the Law on general tax procedures, this must be assessed by the referring court.
         
      
      (b) Indirect discrimination
   
   
            70.
         
         
            However, the fundamental freedoms also prohibit all covert forms of discrimination which, by the application of other criteria of differentiation, lead to the same result. (
                  25
               ) A crucial factor in discriminatory character is therefore whether the different treatment of infringements of the different registration obligations amounts to unequal treatment according to the origin or seat of the undertakings.
         
      
            71.
         
         
            As I have already stated in my Opinions in Vodafone and Tesco, (
                  26
               ) strict criteria must be applied to the existence of covert discrimination. This is because covert discrimination is not intended to extend the scope of the definition of discrimination, but only to include cases which do not constitute discrimination from a purely formal perspective, but have the same effect. (
                  27
               )
         
      
            72.
         
         
            Therefore, in quantitative terms, under no circumstances can a mere preponderance — meaning more than 50% of undertakings being affected — be sufficient; instead, the correlation between the distinguishing criterion and the place in which the company has its seat must be identifiable in the vast majority of cases. (
                  28
               )
         
      
            73.
         
         
            It would, however, seem that more important than this purely quantitative element is the qualitative criterion now used more frequently by the Court, according to which the distinguishing criterion must intrinsically or typically affect foreign companies. (
                  29
               ) A merely incidental link, even if it is sufficiently high in quantitative terms, cannot therefore be sufficient, in principle, to establish indirect discrimination.
         
      
            74.
         
         
            The important factor is, rather, a connection intrinsic to the distinguishing criterion which, on an abstract analysis, clearly suggests the likelihood of a correlation in the vast majority of cases.
         
      
            75.
         
         
            If these principles are applied to the present case, the key question is whether the fact that an undertaking is not yet registered for tax purposes in Hungary — only this triggers the corresponding penalties under the Law on the taxation of advertisements — is intrinsically correlated to an undertaking’s (foreign) seat. Such a connection can be established here, as the Commission maintains.
         
      
            76.
         
         
            Article 7/B(1) makes clear that a person is not to be considered as assessed for any type of tax. All private-law companies incorporated under Hungarian law which are registered for tax purposes upon their incorporation are assessed for some other type of tax in Hungary, as are all taxpayers which either generate turnover in Hungary or carry on activities in Hungary. In both cases residence in Hungary is a crucial factor with the result that this rule intrinsically affects above all resident taxpayers.
         
      
            77.
         
         
            Thus, only non-resident taxpayers are liable, in principle, to be penalised pursuant to Article 7/B(2) and (3) of the Law on the taxation of advertisements. Only atypical domestic cases would be subject to taxation, such as a natural person resident in Hungary who begins to provide advertising services in Hungarian on the internet and has not previously had any revenue, or a legal person governed by public law established in Hungary which becomes economically active for the first time through advertising services. As Google and the Commission have asserted, it is no accident that in the majority of cases only foreign undertakings appear to be subject to the special fine under Article 7/B(2) and (3) of the Law on the taxation of advertisements.
         
      
            78.
         
         
            On account of the structure and the provisions of Article 7/B(1) of the Law on the taxation of advertisements, indirect discrimination resulting from the specific penalisation of failure to comply with the obligation to register for the purposes of the tax on advertisements, and thus a restriction of the freedom to provide services, can be taken to exist in this case.
         
      
      2. Justification of indirect discrimination
   
   
            79.
         
         
            A restriction of fundamental freedoms may, however, be justified by overriding reasons in the public interest, provided it is appropriate for ensuring the attainment of the objective pursued and does not go beyond what is necessary to attain that objective. (
                  30
               )
         
      
      (a) Overriding reasons in the public interest
   
   
            80.
         
         
            The Court has held many times that the need to ensure the effective collection of a tax may constitute an overriding reason in the public interest capable of justifying a restriction on the freedom to provide services. (
                  31
               )
         
      
            81.
         
         
            In the absence of harmonisation by EU law, the national legislature has a degree of discretion in the field of tax law and effective tax enforcement. This justification also permits a differentiation to be made between individual types of tax if the enforcement of the tax in question is more or less difficult from the perspective of the Member State.
         
      
            82.
         
         
            In the case of a tax which has no regard to the taxpayer’s residence in national territory, the enforcement of a tax liability — as is clearly illustrated by the example of Google — is more difficult than the enforcement of an income tax in respect of a resident taxpayer. The different penalties depending on the type of tax are thus understandable and objectively justified.
         
      
            83.
         
         
            The only question is whether the specific form is justified. In this regard, the Court has always observed that the imposition of penalties may be considered to be necessary in order to ensure compliance with national rules, subject, however, to the condition that the nature and amount of the penalty imposed is in each individual case proportionate to the gravity of the infringement which it is designed to penalise. (
                  32
               )
         
      
      (b) Proportionality of the restriction
   
   
            84.
         
         
            The penalty as such must therefore be proportionate. It is proportionate only if it is appropriate for ensuring the attainment of the objective and does not go beyond what is necessary for attaining that objective. (
                  33
               )
         
      
            85.
         
         
            According to the Court’s case-law, national legislation is appropriate for ensuring attainment of the objective pursued only if it genuinely reflects a concern to attain it in a consistent and systematic manner. (
                  34
               )
         
      
            86.
         
         
            There could be some doubt, on the one hand, whether the penalty of initially HUF 10 million (approximately EUR 30600) for the first infringement, which was then tripled for each further day on the basis of the earlier fine, but limited to a total amount of HUF 1 billion (approximately EUR 3.06 million), is actually appropriate for enforcing the tax. The fine has not led to Google becoming registered in Hungary. As Google itself conceded at the hearing, it has not thus far complied with the registration obligation under Article 7/B of the Law on the taxation of advertisements.
         
      
            87.
         
         
            On the other hand, the inappropriateness of a law cannot be inferred from the fact that it is persistently disregarded by an individual undertaking. In the present case, the possibility of imposing a penalty on non-resident undertakings which have not yet registered in Hungary for tax purposes and which fail to comply with their obligation to submit a tax declaration is at least not manifestly inappropriate for attaining the objective of effective collection of the tax on advertisements.
         
      
            88.
         
         
            There would also not appear to be any less onerous, equally appropriate means compared with the abovementioned penalties (point 86). Lower amounts would be a less onerous means, but would not be equally appropriate as they would reduce the financial pressure.
         
      
            89.
         
         
            Furthermore, the penalties must also be proportionate to the legitimate objective of ensuring effective and uniform taxation. Ensuring effective and uniform taxation is a high-ranking protected interest of a State based on the rule of law, which is financed solely by taxes and, to that end, always encroaches on the fundamental rights of its citizens. The requirement of uniform taxation (
                  35
               ) of all taxpayers thus has immense importance for the acceptance and justification of a tax.
         
      
            90.
         
         
            As Albert Hensel — a well-known German professor of tax law from the Weimar Republic — stated almost 100 years ago, taxation of oneself, imposed almost unconditionally, is to be tolerated only if it is ensured that one’s neighbour (that is, any other taxpayer) in the same situation also has to bear the same tax liability. (
                  36
               )
         
      
            91.
         
         
            In the assessment to be made as part of the appropriateness test, this idea of uniform effective taxation among taxpayers stands in opposition to the fundamental freedoms and fundamental rights of the individual, in this case those of Google.
         
      
            92.
         
         
            A fine for failure to comply of approximately EUR 3 million for infringing an obligation to register for tax purposes does not necessarily appear to be reasonable at first sight. However, in addition to the fairly drastic amount, it must also be born in mind that it was essentially for Google to determine whether the penalty applied and in what amount and that the amount is placed into perspective somewhat by Google’s turnover and profits. If Google had complied with its registration obligation, no fine for failure to comply would have been incurred. If Google had registered as quickly as possible after it was first ordered, a fine for failure to comply would not have been incurred in that amount at least. It could possibly even have been reduced in full under Article 7/B(5) of the Law on the taxation of advertisements.
         
      
            93.
         
         
            If, however, the Law is examined more closely, there are a number of factors to indicate that the penalties laid down in the Law by Hungary are disproportionate.
         
      
            94.
         
         
            First, there is no connection to the amount of the tax whose assessment is intended to be guaranteed through the penalties. A foreign taxpayer with only HUF 1 turnover from ‘Hungarian advertising’ above the limit of HUF 100 million, which applied in the year at issue, would, on the first day, be subject to a fine for failure to comply amounting to HUF 10 million. On the second day it would be approximately HUF 30 million and on the third day HUF 90 million. After just 3 days, the fine would exceed the turnover forming the basis for the taxation. With a profit margin of less than 10%, the fine would be higher by the first day than the profit which is actually to be taxed. The proportion in relation to the amount of tax actually due comes out even much worse in this example.
         
      
            95.
         
         
            The reasons for non-registration are also not taken into consideration under the Law. The same amount is always to be imposed. It does, however, make a difference from the point of view of ensuring the effective collection of taxes whether the application for registration was delayed by unforeseeable circumstances or whether, as in the case of Google, the taxpayer deliberately and persistently refused to register.
         
      
            96.
         
         
            In addition, the exponential increase in the fine for failure to comply with each further day, while being limited to approximately EUR 3.06 million, is disproportionate having regard to the objective of ensuring uniform taxation, as is pointed out by the Commission and by the Czech Republic. This legislative technique even prevents the purpose of a coercive penalty payment from being achieved.
         
      
            97.
         
         
            The purpose of a coercive penalty payment is to encourage the taxpayer to take specific action. That purpose nevertheless requires that the taxpayer at least has the opportunity to comply with the coercive measures, which presupposes a certain time to act. That is not the case, here, however. Even before the initial fine imposed for failure to comply was notified by post to the taxpayer, the Hungarian authority imposed the next fine, which was triple the amount. Even if the taxpayer acted immediately, it could not really avoid the further — exponentially increased — fines for failure to comply.
         
      
            98.
         
         
            The manner in which the coercive measures are imposed is unreasonable. It is disproportionate to the objective pursued of uniform tax assessment.
         
      
            99.
         
         
            Nor is the disproportionality of the fine affected by the fact that, as Hungary submits, in contrast with the referring court, the fine imposed can possibly be reduced in full by the authority subsequently. A disproportionate fine does not become proportionate because it can possibly be reduced subsequently to a proportionate amount, where such reduction lies solely at the discretion of the authority. The Court has already ruled in this regard that a subsequent assessment of a penalty by a court does not preclude its disproportionality where the law does not provide for any other possibility of imposing a less restrictive penalty, depending on the seriousness of the infringement committed. (
                  37
               ) This must also apply, however, to a subsequent review by an authority of an already imposed penalty.
         
      
            100.
         
         
            Accordingly, the manner in which the coercive measures are imposed is disproportionate and the indirect restriction of the freedom to provide services is not therefore justified.
         
      
      
         D.
       
         Questions 5 and 7: specific legal redress against the penalties
      
   
   
            101.
         
         
            By its Questions 5 and 7, the referring court wishes to know, in essence, whether there is an unjustified restriction of the freedom to provide services in the light of Articles 41(1) and 47(2) of the Charter if only limited legal redress is available against the special fine for failure to comply under Article 7/B of the Law on the taxation of advertisements. Those limitations reside in the fact that no provision is made to contest the special fine for failure to comply in an administrative procedure before the authority, but the only possibility is legal redress before the courts, which is reduced to a written procedure and documentary evidence.
         
      
            102.
         
         
            The standard of review for an infringement of the freedom to provide services resulting from a procedure, which takes a specific form, for legal redress against a fiscal default surcharge is, as before, unequal treatment of the foreign situation, which is also not present here from a formal point of view. Any person who takes action against the special fine for failure to comply under Article 7/B of the Law on the taxation of advertisements is subject to the same procedure. In principle, EU law also does not require the form of legal redress against any default surcharge to be identical irrespective of its nature.
         
      
            103.
         
         
            However, as I have explained above in point 75 et seq., the legislative technique of Article 7/B of the Law on the taxation of advertisements leads to indirect discrimination against foreign undertakings. This also applies to the limited legal redress against a fine for failure to comply imposed in this way. In this instance, too, it must be examined whether that restriction of the freedom to provide services is justified, which requires the existence of an overriding reason in the public interest. (
                  38
               )
         
      
            104.
         
         
            It is not clear from the preliminary ruling proceedings what legislative reasons determined this limited procedure for legal redress. Even taking into consideration the discretion enjoyed by the Member States in laying down general laws, (
                  39
               ) it is not obvious why, with regard to a very rapidly increasing fine for failure to comply, which is of a considerable size and predominantly affects foreign undertakings, an EU Member State, that is to say, a State based on the rule of law, would reduce possibilities of legal redress against potentially unlawful imposition.
         
      
            105.
         
         
            In the case of default surcharges in a minor amount it would be understandable if the review was accelerated and there was no preliminary administrative procedure, hearing or further evidence. A potential justification would be the idea of administrative simplification raised by Hungary at the hearing. However, that does not apply to a default surcharge of up to approximately EUR 3.06 million, the maximum being reached within a few days (within 5 days according to Google) of delay on account of the exponentially possible imposition and the amount being irrespective of the amount of the tax liability.
         
      
            106.
         
         
            There is therefore no overriding reason in the public interest for that differentiation, which intrinsically affects only foreign undertakings. Consequently, the restriction is not justified.
         
      
            107.
         
         
            Accordingly, as the Commission also rightly states, the Court does not need to determine here whether the fundamental rights mentioned by the referring court are also specifically affected.
         
      
      VI. Conclusion
   
   
            108.
         
         
            For these reasons, I propose that the questions referred by the Fővárosi Közigazgatási és Munkaügyi Bíróság (Budapest Administrative and Labour Court, Hungary) be answered as follows:
            
                     (1)
                  
                  
                     EU law does not preclude the introduction of an income tax linked to the official language of the Member State concerned in the present case.
                  
               
                     (2)
                  
                  
                     A specific registration obligation with a view to implementing and enforcing a special tax (here the tax on advertisements) does not, as such, infringe the freedom to provide services.
                  
               
                     (3)
                  
                  
                     The specific manner in which the Hungarian Law on the taxation of advertisements imposes coercive measures on undertakings established outside Hungary constitutes an indirect restriction of the freedom to provide services which is not justified on account of its disproportionality.
                  
               
                     (4)
                  
                  
                     The limitations of the possibilities for legal redress with regard to the very high coercive penalty payments in connection with the Hungarian tax on advertisements also constitute an unjustified restriction of the freedom to provide services.
                  
               
      (
         1
      )	Original language: German.
   (
         2
      )	See the proceedings pending in Case C‑565/18 Société Générale S.A.
   (
         3
      )	Proposal for a Council Directive on the common system of a digital services tax on revenues resulting from the provision of certain digital services, 21 March 2018, COM(2018) 148 final.
   (
         4
      )	Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1).
   (
         5
      )	See, for example, judgments of 12 September 2006, Cadbury Schweppes and Cadbury Schweppes Overseas (C‑196/04, EU:C:2006:544, paragraph 40); of 11 August 1995, Wielockx (C‑80/94, EU:C:1995:271, paragraph 16); and of 14 February 1995, Schumacker (C‑279/93, EU:C:1995:31, paragraph 21).
   (
         6
      )	See the statements made on page 7 of the request for a preliminary ruling (French version).
   (
         7
      )	See, in detail, my Opinions in Tesco-Global Áruházak (C‑323/18, EU:C:2019:567) and Vodafone Magyarország (C‑75/18, EU:C:2019:492).
   (
         8
      )	Judgments of 20 December 2017, Global Starnet (C‑322/16, EU:C:2017:985, paragraph 35); of 22 January 2015, Stanley International Betting and Stanleybet Malta (C‑463/13, EU:C:2015:25, paragraph 45); and of 10 May 2012, Duomo Gpa and Others (C‑357/10 to C‑359/10, EU:C:2012:283, paragraphs 35 and 36).
   See also, by analogy with regard to freedom of establishment, judgments of 21 May 2015, Verder LabTec (C‑657/13, EU:C:2015:331, paragraph 34); of 16 April 2015, Commission v Germany (C‑591/13, EU:C:2015:230, paragraph 56 and the case-law cited); and of 29 November 2011, National Grid Indus (C‑371/10, EU:C:2011:785, paragraph 36).
   (
         9
      )	See my Opinions in X (C‑498/10, EU:C:2011:870, point 28); Hervis Sport- és Divatkereskedelmi Kft. (C‑385/12, EU:C:2013:531, point 82 et seq.); X (C‑686/13, EU:C:2015:31, point 40); C (C‑122/15, EU:C:2016:65, point 66); and ANGED (C‑233/16, EU:C:2017:852, point 28).
   (
         10
      )	Only recently, judgment of 18 June 2019, Austria v Germany (C‑591/17, EU:C:2019:504, paragraph 54); see also judgments of 19 September 2017, Commission v Ireland(registration tax) (C‑552/15, EU:C:2017:698, paragraph 71); and of 21 November 2013, X (C‑302/12, EU:C:2013:756, paragraph 23).
   (
         11
      )	See also Kokott, J., Das Steuerrecht der Europäischen Union, Munich 2018, § 3, paragraph 117 et seq., Szudoczky, R., The sources of EU Law and their relationships: Lessons for the field of taxation, IBFD, Doctoral Series (vol. 32), Amsterdam, 2014, p. 334 et seq., 343, 358 et seq.
   With regard to freedom of establishment, see also Müller-Graff, P.-C., in: Streinz, R., EUV/AEUV, Munich, 3rd edition 2018, Article 49, paragraph 70.
   (
         12
      )	See, to that effect, judgments of 26 May 2016, NN (L) International (C‑48/15, EU:C:2016:356, paragraph 47); and of 14 April 2016, Sparkasse Allgäu (C‑522/14, EU:C:2016:253, paragraph 29); order of 4 June 2009, KBC-bank (C‑439/07 and C‑499/07, EU:C:2009:339, paragraph 80); and judgment of 6 December 2007, Columbus Container Services (C‑298/05, EU:C:2007:754, paragraphs 51 and 53).
   See, specifically with regard to the freedom to provide services, for example, judgments of 18 October 2012, X (C‑498/10, EU:C:2012:635, paragraph 20), and of 11 June 2009, X and Passenheim-van Schoot (C‑155/08 and C‑157/08, EU:C:2009:368, paragraph 32 and the case-law cited).
   (
         13
      )	Judgment of 24 November 1993, Keck and Mithouard (C‑267/91 and C‑268/91, EU:C:1993:905, paragraph 16).
   (
         14
      )	Judgment of 26 May 2016, NN (L) International (C‑48/15, EU:C:2016:356, paragraph 45 et seq.).
   (
         15
      )	Permanent Court of International Justice, Judgment No 9 of 7 September 1927, Lotus, p. 19.
   (
         16
      )	International Court of Justice, Nottebohm Case, judgment of 6 April 1955, p. 23 and 24.
   (
         17
      )	Kokott, J., ‘The “Genuine Link” Requirement for Source Taxation in Public International Law’, in Haslehner/Kofler/Rust, Tax and the Digital Economy, 2019, Chap. 2 (p. 9 et seq.).
   (
         18
      )	2017 OECD Model Convention for the elimination of double taxation with respect to taxes on income and on capital and the prevention of tax evasion and avoidance, as amended by the 2017 OECD Update of 21 November 2017.
   (
         19
      )	See, for further detail, Kokott, J., Das Steuerrecht der Europäischen Union, Munich 2018, § 2, paragraph 142 et seq.
   (
         20
      )	Judgment of 7 December 2010, Pammer and Hotel Alpenhof (C‑585/08 and C‑144/09, EU:C:2010:740, paragraph 2 of the operative part).
   (
         21
      )	See, with regard to the legislature’s power of standardisation, judgments of 24 February 2015, Sopora (C‑512/13, EU:C:2015:108, paragraphs 33 and 34), and of 26 September 2013, Dansk Jurist- og Økonomforbund (C‑546/11, EU:C:2013:603, paragraph 70); see also my Opinion in Sopora (C‑512/13, EU:C:2014:2375, point 51 et seq.).
   (
         22
      )	Judgments of 26 May 2016, NN (L) International (C‑48/15, EU:C:2016:356, paragraph 47); of 21 November 2013, X (C‑302/12, EU:C:2013:756, paragraph 28); and of 8 December 2011, Banco Bilbao Vizcaya Argentaria (C‑157/10, EU:C:2011:813, paragraph 38 and the case-law cited).
   (
         23
      )	Judgments of 26 May 2016, NN (L) International (C‑48/15, EU:C:2016:356, paragraph 47), and of 12 February 2009, Block (C‑67/08, EU:C:2009:92, paragraph 31).
   (
         24
      )	Judgments of 26 May 2016, NN (L) International (C‑48/15, EU:C:2016:356, paragraph 59); of 18 October 2012, X (C‑498/10, EU:C:2012:635, paragraph 39); and of 19 June 2014, Strojírny Prostějov and ACO Industries Tábor (C‑53/13 and C‑80/13, EU:C:2014:2011, paragraph 46).
   (
         25
      )	Judgments of 26 April 2018, ANGED (C‑233/16, EU:C:2018:280, paragraph 30); of 5 February 2014, Hervis Sport- és Divatkereskedelmi Kft. (C‑385/12, EU:C:2014:47, paragraph 30); of 8 July 1999, Baxter and Others (C‑254/97, EU:C:1999:368, paragraph 13); and of 14 February 1995, Schumacker (C‑279/93, EU:C:1995:31, paragraph 26).
   (
         26
      )	See my Opinions in Tesco-Global Áruházak (C‑323/18, EU:C:2019:567) and Vodafone Magyarország (C‑75/18, EU:C:2019:492).
   (
         27
      )	See my Opinions in Hervis Sport- és DivatkereskedelmiKft. (C‑385/12, EU:C:2013:531, point 40); ANGED (C‑233/16, EU:C:2017:852, point 38); and Memira Holding (C‑607/17, EU:C:2019:8, point 36).
   (
         28
      )	See my Opinion in Hervis Sport- és Divatkereskedelmi Kft. (C‑385/12, EU:C:2013:531, point 41).
   (
         29
      )	See judgments of 2 March 2017, Eschenbrenner (C‑496/15, EU:C:2017:152, paragraph 36) with regard to free movement of workers; of 5 December 2013, Zentralbetriebsrat der gemeinnützigen Salzburger Landeskliniken Betriebs (C‑514/12, EU:C:2013:799, paragraph 26); of 28 June 2012, Erny (C‑172/11, EU:C:2012:399, paragraph 41); of 1 June 2010, Blanco Pérez and Chao Gómez (C‑570/07 and C‑571/07, EU:C:2010:300, paragraph 119) with regard to freedom of establishment; of 10 September 2009, Commission v Germany (C‑269/07, EU:C:2009:527); and of 8 July 1999, Baxter and Others (C‑254/97, EU:C:1999:368, paragraph 13).
   See also my Opinions in ANGED (C‑233/16, EU:C:2017:852, point 38) and Memira Holding (C‑607/17, EU:C:2019:8, point 36); to the opposite effect, my Opinion in Hervis Sport- és Divatkereskedelmi Kft. (C‑385/12, EU:C:2013:531, point 42 et seq.).
   (
         30
      )	Judgments of 5 February 2014, Hervis Sport- és Divatkereskedelmi Kft. (C‑385/12, EU:C:2014:47, paragraph 42); of 24 March 2011, Commission v Spain (C‑400/08, EU:C:2011:172, paragraph 73); and of 5 October 2004, CaixaBank France (C‑442/02, EU:C:2004:586, paragraph 17).
   (
         31
      )	Judgments of 26 May 2016, NN (L) International (C‑48/15, EU:C:2016:356, paragraph 59); of 19 June 2014, Strojírny Prostějov and ACO Industries Tábor (C‑53/13 and C‑80/13, EU:C:2014:2011, paragraph 46); and of 18 October 2012, X (C‑498/10, EU:C:2012:635, paragraph 39).
   (
         32
      )	Judgments of 26 May 2016, NN (L) International (C‑48/15, EU:C:2016:356, paragraph 59), and of 3 December 2014, De Clercq and Others (C‑315/13, EU:C:2014:2408, paragraph 73 and the case-law cited).
   (
         33
      )	See, for example, judgments of 17 July 2014, Nordea Bank (C‑48/13, EU:C:2014:2087, paragraph 25); of 29 November 2011, National Grid Indus (C‑371/10, EU:C:2011:785, paragraph 42); of 15 May 2008, Lidl Belgium (C‑414/06, EU:C:2008:278, paragraph 27); of 12 September 2006, Cadbury Schweppes and Cadbury Schweppes Overseas (C‑196/04, EU:C:2006:544, paragraph 47); of 13 December 2005, SEVIC Systems (C‑411/03, EU:C:2005:762, paragraph 23); and of 13 December 2005, Marks & Spencer (C‑446/03, EU:C:2005:763, paragraph 35).
   (
         34
      )	Judgments of 11 June 2015, Berlington Hungary and Others (C‑98/14, EU:C:2015:386, paragraph 64); of 12 July 2012, HIT and HIT LARIX (C‑176/11, EU:C:2012:454, paragraph 22 and the case-law cited); and of 17 November 2009, Presidente del Consiglio dei Ministri (C‑169/08, EU:C:2009:709, paragraph 42).
   (
         35
      )	The Court itself has already recognised this requirement in EU law (that is to say, in VAT law); see, for example, judgment of 25 January 2001, Commission v France (C‑429/97, EU:C:2001:54, paragraph 40). It also applies, however, to any other area of taxation in national or EU law.
   (
         36
      )	Hensel, A., Die Abänderung des Steuertatbestandes durch freies Ermessen und der Grundsatz der Gleichheit vor dem Gesetz, Vierteljahresschrift für Steuer- und Finanzrecht 1927, p. 62: Each taxpayer has the right to say: I demand that my neighbour is taxed as heavily as I am. At the time, Albert Hensel described the ‘universality and equality of taxation’ as the ‘supreme principle of a constitutional taxation system’.
   (
         37
      )	See judgment of 26 May 2016, NN (L) International (C‑48/15, EU:C:2016:356, paragraph 61).
   (
         38
      )	Judgments of 5 February 2014, Hervis Sport- és Divatkereskedelmi Kft. (C‑385/12, EU:C:2014:47, paragraph 42); of 24 March 2011, Commission v Spain (C‑400/08, EU:C:2011:172, paragraph 73); and of 5 October 2004, CaixaBank France (C‑442/02, EU:C:2004:586, paragraph 17).
   (
         39
      )	See judgments of 6 November 2003, Gambelli and Others (C‑243/01, EU:C:2003:597, paragraph 63); of 21 September 1999, Läärä and Others (C‑124/97, EU:C:1999:435, paragraphs 14 and 15); and of 24 March 1994, Schindler (C‑275/92, EU:C:1994:119, paragraph 61) — all concerning games of chance, and of 5 March 1996, Brasserie du pêcheur and Factortame (C‑46/93 and C‑48/93, EU:C:1996:79, paragraph 48 et seq.) concerning foodstuffs legislation.