Jessica Safir v Skattemyndigheten i Dalarnas Län, formerly Skattemyndigheten i Kopparbergs Län.
Date: 1998-04-28
21 It must be observed first of all that, although, as Community law stands at present, direct taxation does not as such fall within the purview of the Community, the powers retained by the Member States must nevertheless be exercised consistently with Community law (see, in particular, Case C-279/93 Schumacker [1995] ECR I-225, paragraph 21).
22 Since the provision of insurance constitutes a service within the meaning of Article 60 of the Treaty, it must next be borne in mind that, according to the case-law of the Court, Article 59 of the Treaty precludes the application of any national legislation which, without objective justification, impedes a provider of services from actually exercising the freedom to provide them (see, in particular, Case C-381/93 Commission v France [1994] ECR I-5145, paragraph 16).
23 In the perspective of a single market and in order to enable its objectives to be attained, Article 59 of the Treaty likewise precludes the application of any national legislation which has the effect of making the provision of services between Member States more difficult than the provision of services exclusively within one Member State (Case C-381/93 Commission v France, cited above, paragraph 17).
26 First, unlike persons who have taken out capital life assurance with companies established in Sweden, persons so insured with companies not established in Sweden must register themselves and declare premium payments to a central body, Skattemyndigheten, which also has power to grant a tax exemption or a tax reduction.  Policyholders must also pay the tax themselves and for this purpose find the necessary funds, which, as Jessica Safir points out, has negative consequences for them in terms of liquidity. It is true that such obligations cannot in themselves be regarded as being contrary to Community law.  However, those obligations, combined with the need to follow a centralised procedure, may dissuade interested persons from taking out capital life assurance with companies not established in Sweden, since no particular action on their part would be called for if they took out such assurance with companies established in Sweden, the tax being levied in this case on the company.
30 In those circumstances, legislation such as that in question in the main proceedings contains a number of elements liable to dissuade individuals from taking out capital life assurance with companies not established in Sweden and liable to dissuade insurance companies from offering their services on the Swedish market.
34 In those circumstances, the reasons cited by the Swedish Government, namely the impossibility of applying to capital life assurance policies taken out with companies not established in Sweden the same tax regime as that applied to such insurance policies taken out with companies which are established in Sweden and 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 not established in Sweden are not such as to justify the inclusion in national legislation on the taxation of capital life assurance of elements as restrictive of the freedom to provide services as those contained in the legislation in question in the main proceedings.