Skatteministeriet v Bent Vestergaard.
Date: 1999-10-28
15 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-118/96 Safir [1998] ECR I-1897, at paragraph 21).
16 Secondly, according to settled case-law, the first paragraph of Article 6 of the Treaty, which lays down the general principle of the prohibition of discrimination on grounds of nationality, applies independently only to situations governed by Community law in respect of which the Treaty lays down no specific rule against discrimination (see, in particular, Case C-22/98 Becu and Others [1999] ECR I-0000, at paragraph 32).
17 With regard to freedom to provide services, this principle is given specific expression and effect by Article 59 of the Treaty.  There is therefore no need to rule on the interpretation of Article 6 of the Treaty.
18 Thirdly, it is important to point out that in order for services such as those in question in the main proceedings, namely the organisation of professional training courses, to fall within the scope of Article 59 of the Treaty, it is sufficient for them to be provided to nationals of a Member State on the territory of another Member State, irrespective of the place of establishment of the provider or recipient of the services.
19 Article 59 of the Treaty applies not only where a person providing a service and the recipient are established in different Member States, but also whenever a provider of services offers those services in a Member State other than the one in which he is established (see Case C-381/93 Commission v France [1994] ECR I-5145, at paragraph 14), wherever the recipients of those services may be established (see Case C-398/95 SETTG [1997] ECR I-3091, at paragraph 8).
20 In addition, the right to exercise freedom to provide services includes the freedom for the recipients of services to go to another Member State in order to receive a service there, without being obstructed by restrictions (see, in particular, Case C-224/97 Ciola [1999] ECR I-0000, at paragraph 11).
21 As regards the question whether the rules of a Member State, such as at issue in the main proceedings, contains a restriction prohibited under Article 59 of the Treaty, it must be observed that, by making the right to deduct costs relating to participation in professional training courses held in an ordinary tourist resort abroad conditional upon the rebuttal, by the taxpayer, of a presumption that such courses involve such a significant tourism element that the costs cannot be treated as deductible operating costs, while such a presumption does not exist for courses held in ordinary tourist resorts located in the said Member State, those rules subject the provision of services constituted by the organisation of professional courses to different tax arrangements depending on whether the services are provided in other Member States or in the Member State concerned.
23 Such a difference in treatment is not justified by the need to preserve the cohesion of a tax system nor by the effectiveness of fiscal supervision, which, in the judgments in, respectively, Bachmann (Case C-204/90 [1992] ECR I-249) and Futura Participations and Singer (Case C-250/95 [1997] ECR I-2471), mentioned by the referring court, have been recognised as capable of justifying the regulations and thus restricting the fundamental freedoms guaranteed by the Treaty.
24 In the cases which led to the judgment in Bachmann, cited above, and to the judgment delivered on the same day in Case C-300/90 Commission v Belgium [1992] ECR I-305, there was a direct link between the deductibility of contributions and the taxation of sums payable by insurers under pension and life assurance contracts, and that link had to be maintained to preserve the cohesion of the tax system in question (see C-484/93 Svensson and Gustavsson [1995] ECR I-3955, at paragraph 18; Case C-107/94 Asscher [1996] ECR I-3089, at paragraph 58, and Case C-264/96 ICI [1998] ECR I-4695, at paragraph 29).  In the present case, as the Advocate General observes in paragraph 39 of his Opinion, there is no such direct link between any taxation and the deductibility of costs relating to participation in professional training courses.
25 Furthermore, while a Member State may, in the interests of the effectiveness of fiscal supervision, apply measures which allow the amount of costs deductible in that State as operating costs to be ascertained clearly and precisely, and in particular those incurred in taking part in professional training courses (see Futura Participations and Singer, cited above, at paragraph 31, and Case C-254/97 Baxter and Others [1999] ECR I-0000, at paragraph 18), it cannot however provide any justification for that Member State to make the deduction subject to different conditions according to whether the courses take place in that State or in another Member State.
26 In that regard, it should be remembered that Council Directive 77/799/EEC of 19 December 1977 concerning mutual assistance by the competent authorities of the Member States in the field of direct taxation (OJ 1977 L 336, p. 15) can be invoked 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.  In addition, there is nothing to prevent the tax authorities concerned from requiring the taxpayer himself to produce the proof which they consider necessary to assess whether or not the deduction requested should be allowed (see Bachmann and Commission v Belgium, cited above, at respectively paragraphs 18 and 20 and paragraphs 11 and 13).
28 However, it should be emphasised that the information which Directive 77/799 allows the competent authorities of a Member State to request is in fact all the information which appears to them to be necessary to ascertain the correct amount of revenue tax payable by a taxpayer in relation to the legislation which they have to apply themselves (see, to this effect, Futura Participations and Singer, at paragraph 41) and that the directive does not in any way affect the competence of those authorities to assess in particular whether the conditions to which that legislation subjects the deduction of certain costs are fulfilled.