Olivier Halley, Julie Halley and Marie Halley v Belgische Staat.
Date: 2011-09-15
17. In that regard, it should be pointed out that, in order to determine whether national legislation falls within the scope of one or other of the freedoms of movement, it is clear from now well established case-law that the purpose of the legislation concerned must be taken into consideration (see Case C‑157/05 Holböck  [2007] ECR I‑4051, paragraph 22; Case C‑182/08 Glaxo Wellcome  [2009] ECR I‑8591, paragraph 36).
19. According to the case-law of the Court, inheritances, which consist in the transfer to one or more persons of assets left by a deceased person and fall under heading XI of Annex I to Directive 88/361, entitled ‘Personal capital movements’, constitute movements of capital for the purposes of Article 63 TFEU, except in cases where their constituent elements are confined within a single Member State (see, to that effect, Case C‑11/07 Eckelkamp and Others [2008] ECR I‑6845, paragraph 39 and the case-law cited). A situation such as that in the case before the referring court, in which the shares are held by a person residing in Belgium in a company whose centre of effective management is situated in France, in no way constitutes a purely internal situation.
22. It must be noted that the measures prohibited by Article 63(1) TFEU, as restrictions on the movement of capital, include those which are liable to discourage non-residents from making investments in a Member State or from maintaining such investments (see, to that effect, Case C‑377/07 STEKO Industriemontage  [2009] ECR I‑299, paragraphs 23 and 24; Case C‑450/09 Schröder  [2011] ECR I‑0000, paragraph 30).
23. It appears from the order for reference that the legislation at issue in the main proceedings results in a distinction being made in relation to the limitation period for the valuation of registered shares for the purposes of inheritance tax according to the location of the issuing company’s centre of effective management, since the limitation period for the valuation of shares issued by a company whose centre of effective management is established in Belgium is 2 years, whereas that period increases to 10 years where the shares are held in a company whose centre of effective management is in another Member State.
24. The application of a longer limitation period to heirs holding shares in a company whose centre of effective management is established in a Member State other than the Kingdom of Belgium may have the effect of deterring Belgian residents from investing or maintaining investments in assets situated outside that Member State, given that their heirs will experience a longer period of uncertainty as to the possibility of being subject to a tax adjustment.
25. Such national legislation therefore constitutes a restriction on the free movement of capital for the purposes of Article 63(1) TFEU.
The justification for the restriction on the free movement of capital
30. In that regard, it is settled case-law that the need to guarantee the effectiveness of fiscal supervision and the prevention of tax evasion constitute overriding requirements of general interest capable of justifying a restriction on the exercise of the freedoms of movement guaranteed by the FEU Treaty (see, inter alia, regarding the prevention of tax evasion, Case C‑386/04 Centro di Musicologia Walter Stauffer  [2006] ECR I‑8203, paragraph 32, and, regarding the effectiveness of fiscal supervision, Case C‑318/07 Persche  [2009] ECR I‑359, paragraph 52).
31. However, a restriction on the free movement of capital is permissible on that ground only if it is appropriate to ensuring the attainment of the objective pursued and does not go beyond what is necessary to attain that objective (see, inter alia, Case C‑72/09 Établissements Rimbaud [2010] ECR I‑0000, paragraph 33 and the case-law cited).
33. Indeed, it follows from the Court’s case-law relating to the recovery period in cases where savings balances and/or income therefrom are concealed from the tax authorities that two situations must be distinguished. The first is where taxable items have been concealed and the authorities do not have any evidence which would enable an investigation to be initiated. The second is where the authorities have evidence concerning taxable items (Joined Cases C‑155/08 C/157/08 X and Passenheim-van Schoot  [2009] ECR I‑5093, paragraphs 62 and 63).