Martin Wächtler v Finanzamt Konstanz.
Date: 2019-02-26
35


As a preliminary point, since the AFMP is an international treaty, it must be interpreted, in accordance with Article 31 of the Vienna Convention on the Law of Treaties of 23 May 1969 (United Nations Treaty Series, vol. 1155, p. 331), in good faith, in accordance with the ordinary meaning to be given to its terms in their context and in the light of its object and purpose (judgments of 2 March 1999, Eddline El-Yassini, C‑416/96, EU:C:1999:107, paragraph 47, and of 24 November 2016, SECIL, C‑464/14, EU:C:2016:896, paragraph 94 and the case-law cited). Further, it follows from that provision that a term will be understood to have a special meaning if it is shown that that was the intention of the parties (see, to that effect, judgment of 27 February 2018, Western Sahara Campaign UK, C‑266/16, EU:C:2018:118, paragraph 70).
36


In that context, it is important to note, first, that the AFMP falls within the more general framework of relations between the European Union and the Swiss Confederation. Although the Swiss Confederation does not participate in the European Economic Area and in the European Union’s internal market, it is nevertheless linked to the European Union by numerous agreements covering vast fields and prescribing specific rights and obligations, analogous, in some respects, to those laid down by the Treaty. The general objective of those agreements, including the AFMP, is to strengthen the economic ties between the European Union and the Swiss Confederation (judgment of 6 October 2011, Graf and Engel, C‑506/10, EU:C:2011:643, paragraph 33).
37


However, as the Swiss Confederation has not joined the internal market of the European Union, the interpretation given to the provisions of EU law concerning that market cannot automatically be applied to the interpretation of the AFMP, unless there are express provisions to that effect laid down by that agreement itself (judgment of 15 March 2018, Picart, C‑355/16, EU:C:2018:184, paragraph 29).
45


In that context, it must be recalled that the concept of an ‘employed person’ is a concept of EU law (judgment of 19 March 1964, Unger, 75/63, EU:C:1964:19, p. 363) which already existed at the date of signature of the AFMP. The essential feature of an employment relationship is that, for a certain period of time, a person performs services for and under the direction of another person in return for which remuneration is received. Conversely, an activity pursued without any relationship of subordination has to be classified as ‘self-employed activity’ (see, by analogy, judgments of 27 June 1996, Asscher, C‑107/94, EU:C:1996:251, paragraphs 25 and 26, and of 20 November 2001, Jany and Others, C‑268/99, EU:C:2001:616, paragraph 34).
47


As regards the scope ratione personae of the concept of ‘self-employed person’, within the meaning of the AFMP, the Court has already stated that that scope is defined in Articles 12 and 13 of Annex I to that agreement (judgment of 15 March 2018, Picart, C‑355/16, EU:C:2018:184, paragraph 18).
48


It follows from Article 12(1) of that annex that that provision is applicable to a natural person who is a national of a contracting party and who has become established in the territory of another contracting party and pursues a self-employed activity in the territory of that other party (see, to that effect, judgment of 15 March 2018, Picart, C‑355/16, EU:C:2018:184, paragraphs 22 and 23).
51


As regards whether it is open to a national of a contracting party to assert the rights conferred by the AFMP against his or her State of origin, it must be observed that, in accordance with case-law of the Court which existed prior to the date of signature of that agreement, the right of establishment, within the meaning of EU law, has the aim not only of ensuring that foreign nationals are treated in the host Member State in the same way as nationals of that State, but also of preventing restrictions on that right issuing from the Member State of origin of the national concerned (see, to that effect, judgment of 27 September 1988, Daily Mail and General Trust, 81/87, EU:C:1988:456, paragraph 16).
52


Accordingly, in certain circumstances and in the light of the applicable provisions, nationals of a Contracting Party of the AFMP may claim rights under that agreement not only against the State to which they exercise freedom of movement but also against their State of origin (judgment of 15 March 2018, Picart, C‑355/16, EU:C:2018:184, paragraph 16 and the case-law cited).
53


The free movement of persons guaranteed by the AFMP would be impeded if a national of a Contracting Party were to be placed at a disadvantage in his State of origin solely for having exercised his right of free movement (judgment of 15 December 2011, Bergström, C‑257/10, EU:C:2011:839, paragraph 28).
55


Since the principle of equal treatment is a concept of EU law (see, to that effect, judgments of 19 October 1977, Ruckdeschel and Others, 117/76 and 16/77, EU:C:1977:160, paragraph 7, and of 6 October 2011, Graf and Engel, C‑506/10, EU:C:2011:643, paragraph 26 and the case-law cited) which existed at the date of signature of the AFMP, it is necessary, as follows from paragraphs 38 and 39 of the present judgment, to take into account the principles established by the Court’s case-law in relation to equal treatment in order to determine whether there is any discrimination that is prohibited by the AFMP (see, to that effect, judgments of 6 October 2011, Graf and Engel, C‑506/10, EU:C:2011:643, paragraph 26, and of 21 September 2016, Radgen, C‑478/15, EU:C:2016:705, paragraph 47).
58


It must, however, be noted that the effect of Article 21(2) of the AFMP is that taxpayers whose situations are not comparable, especially as regards their place of residence, may be treated differently for tax purposes (judgment of 21 September 2016, Radgen, C‑478/15, EU:C:2016:705, paragraph 45).
63


However, such measures, which correspond, according to the Court’s case-law in the context of free movement of persons within the European Union, to overriding reasons in the general interest (see, inter alia, judgments of 15 May 1997, Futura Participations and Singer, C‑250/95, EU:C:1997:239, paragraph 31 and the case-law cited; of 3 October 2006, FKP Scorpio Konzertproduktionen, C‑290/04, EU:C:2006:630, paragraph 36, and of 11 December 2014, Commission v Spain, C‑678/11, EU:C:2014:2434, paragraphs 45 and 46), must, in any event, have due regard for the principle of proportionality, that is, they must be appropriate for attaining those objectives and must not go beyond what is necessary in order to attain them.
66


As regards the objective relating to the need to guarantee the effective collection of the tax in order to prevent the loss of tax revenue, it is clear that the immediate collection of the tax at issue at the time when the taxpayer’s domicile is transferred may, as a general rule, be justified by the need to ensure the effective collection of tax liabilities. However, as the Advocate General stated in points 103 to 105 of his Opinion, that measure goes beyond what is necessary in order to achieve that objective and must therefore be considered to be disproportionate. In a situation where there is a risk of non-recovery of the tax payable, particularly where there is no mutual assistance mechanism for the recovery of tax debts, deferral of collection of that tax may be subject to an obligation to provide a guarantee (see, by analogy, judgments of 29 November 2011, National Grid Indus, C‑371/10, EU:C:2011:785, paragraphs 73 and 74, and of 23 January 2014, DMC, C‑164/12, EU:C:2014:20, paragraphs 65 to 67).