Rolf Dieter Danner.
Date: 2002-10-03
25 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.
26 Article 60 of the Treaty provides that the chapter concerning services applies to services 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).
27 In the present case, the contributions paid by Mr Danner plainly constitute consideration for pensions which will be payable to him when he stops working and they unquestionably represent remuneration as regards the two German institutions which receive them (see, to that effect, Case C-157/99 Geraets-Smits and Peerbooms [2001] ECR I-5473, paragraph 58).
Restriction on freedom to provide services
28 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).
29 In the perspective of a single market and in order to permit the attainment of the objectives thereof, Article 59 of the Treaty 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).
31 In fact, in view of the important role played, at the time when a pension insurance contract is taken out, by the possibility of obtaining tax relief under that head, such legislation is liable to dissuade individuals from taking out voluntary pension insurance with institutions established in a Member State other than Finland and to dissuade those institutions from offering their services on the Finnish market (see, to that effect, Case C-118/96 Safir [1998] ECR I-1897, paragraph 30).
Justificatory grounds relied on
36 In that regard, it should be noted that the judgments of 28 January 1992 in Bachmann (Case C-204/90 [1992] ECR I-249) and Commission v Belgium (Case C-300/90 [1992] ECR I-305) 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.
49 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).
50 A Member State is therefore in a position to check whether contributions have actually been paid by one of its taxpayers to an institution coming under the authority of 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 and Commission v Belgium, paragraphs 11 and 13).
51 As regards the effectiveness of the supervision of the taxation of pensions paid to Finnish 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.
55 In that regard it should be recalled that, contrary to the Danish Government's assertion, the Court has held, in paragraph 34 of Safir, that 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.
56 The Court has also 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, to that effect, Case C-307/97 Saint-Gobain ZN [1999] ECR I-6161, paragraph 51). In addition, it held 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 (see Case C-294/97 Eurowings Luftverkehrs [1999] ECR I-7447, paragraph 44).