Försäkringsaktiebolaget Skandia (publ) and Ola Ramstedt v Riksskatteverket.
Date: 2003-06-26
22.  At the outset, it should be stated that the Treaty provisions relating to freedom to provide services apply to a situation such as that in the main proceedings.
23.  Article 50 EC provides that services are to be considered to be   "services"   within the meaning of the Treaty where they are normally provided for remuneration.  It has already been held that, for the purposes of that provision, the essential characteristic of remuneration lies in the fact that it constitutes consideration for the service in question (see Case 263/86   Belgian State   v   Humbel   [1988] ECR 5365, paragraph 17).
24.  In fact, the premiums which Skandia pays are the consideration for the pension which will be paid to Mr Ramstedt when he retires.  It is irrelevant that Mr Ramstedt does not pay the premiums himself, as Article 50 does not require that the service be paid for by those for whom it is performed (see, to that effect, Case 352/85   Bond van Adverteerders and Others   [1988] ECR 2085, paragraph 16).  Moreover, the premiums unquestionably represent remuneration for the insurance companies which receive them (see, to that effect, Case C-157/99   Smits and Peerbooms   [2001] ECR I-5473, paragraph 58).
Restriction on freedom to provide services
25.  At the outset it should be recalled that, although direct taxation falls within their competence, Member States must none the less exercise that competence consistently with Community law (Case C-80/94   Wielockx   [1995] ECR I-2493, paragraph 16, Case C-264/96   ICI   [1998] ECR I-4695, paragraph 19, Case C-311/97   Royal Bank of Scotland   [1999] ECR I-2651, paragraph 19, and Case C-35/98   Verkooijen   [2000] ECR I-4071, paragraph 32).
26.  In the perspective of a single market and in order to permit the attainment of the objectives thereof, Article 49 EC 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 (see,   inter alia  , Case C-381/93   Commission   v   France   [1994] ECR I-5145, paragraph 17, and   Smits and Peerbooms  , cited above, paragraph 61).
27.  In that regard, it was not disputed before the Court that national legislation such as that at issue in the main proceedings restricts freedom to provide services.
28.  In fact, in view of the disadvantage to the employer in financial terms in the postponement of the right to deduction until the time the pension benefits are paid to the employee, national rules such as those at issue in the main proceedings are liable both to dissuade Swedish employers from taking out occupational pension insurance with institutions established in a Member State other than the Kingdom of Sweden and to dissuade those institutions from offering their services on the Swedish market (see, to that effect, Case C-118/96   Safir   [1998] ECR I-1897, paragraph 30, and Case C-136/00   Danner   [2002] ECR I-8147, paragraph 31).
Justification relied on
33.  In that regard, it should be noted that the judgments in   Bachmann   and Case C-300/90   Commission   v   Belgium   [1992] ECR I-305, paragraph 14, were based on the finding that, in Belgian law, there was a direct connection between the deductibility of contributions and the liability to tax on sums payable by insurers.  Under the Belgian tax system, the loss of revenue resulting from the deduction of insurance contributions was offset by the taxation of pensions, annuities or capital sums payable by insurers.  By contrast, where such contributions had not been deducted, those sums were exempted from tax (see   Danner  , cited above, paragraph 36).
42.  It should first be recalled that Directive 77/799 may be relied on by a Member State in order to obtain from the competent authorities of another Member State all the information enabling it to ascertain the correct amount of income tax (see Case C-55/98   Vestergaard   [1999] ECR I-7641, paragraph 26), or all the information it considers necessary to ascertain the correct amount of income tax payable by a taxpayer according to the legislation which it applies (see   Wielockx  , cited above, paragraph 26, and   Danner  , paragraph 49).
43.  A Member State is therefore in a position to check whether contributions have actually been paid by one of its taxpayers to an insurance company established in another Member State.  In addition, there is nothing to prevent the tax authorities concerned from requiring the taxpayer to provide such proof as they may consider necessary in order to determine whether the conditions for deducting contributions provided for in the legislation at issue have been met and, consequently, whether to allow the deduction requested (see, to that effect,   Bachmann  , paragraphs 18 and 20,   Commission   v   Belgium  , paragraphs 11 and 13, and   Danner  , paragraph 50).
44.  As regards the effectiveness of the supervision of the taxation of pensions paid to Swedish residents, it may be ensured by measures which restrict freedom to provide services to a lesser degree than a national measure such as that at issue in the main proceedings (Danner  , paragraph 51).
51.  In that regard, as it pointed out in   Danner   in paragraph 55, the Court held in paragraph 34 of its judgment in   Safir   that, in that case, the need to fill the fiscal vacuum arising from the non-taxation of savings in the form of capital life assurance policies taken out with companies established in a Member State other than the one where the saver is resident was not such as to justify the national measure at issue, which restricted freedom to provide services.
52.  The Court has also held, in general terms, that any tax advantage resulting for providers of services from the low taxation to which they are subject in the Member State in which they are established cannot be used by another Member State to justify less favourable treatment in tax matters given to recipients of services established in the latter State.  Such compensatory tax arrangements prejudice the very foundations of the single market (see  Case C-294/97   Eurowings Luftverkehrs   [1999] ECR I-7447, paragraphs 44 and 45).
53.  Finally, the Court has held that the need to prevent the reduction of tax revenue is not one of the grounds listed in Article 56 of the EC Treaty (now, after amendment, Article 46 EC) or a matter of overriding general interest (see   Danner  , paragraph 56) which would justify a restriction on the freedom to provide services.
Competitive neutrality
61.  As Article 12 EC applies independently only to situations governed by Community law in regard to which the Treaty lays down no specific rules prohibiting discrimination (see   inter alia   Case C-379/92   Peralta   [1994] ECR I-3453, paragraph 18), there is no need, in the light of the foregoing observations, to consider the question raised in the light of that provision.