Commission of the European Communities v Kingdom of Belgium.
Date: 2007-07-05
35. It should be noted that, although direct taxation falls within the competence of the Member States, they must none the less exercise that competence consistently with Community law (see, in particular, Case C‑150/04 Commission  v Denmark  [2007] ECR I‑0000, paragraph 34 and the case‑law cited).
36. It should also be borne in mind that the provision of insurance constitutes a service within the meaning of Article 50 EC and that Article 49 EC 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 Commission  v Denmark , paragraph 37, and the case‑law cited).
37. With reference to the single market and in order to permit the achievement of its objectives, Article 49 EC precludes the application of any national rules which have the effect of making the provision of services between Member States more difficult than the provision of services purely within one Member State (see Safir , paragraph 23, Commission  v Denmark , paragraph 38, and the case‑law cited).
38. In addition, according to the Court’s case-law, Article 49 EC precludes, inter alia, any national legislation which is liable to prohibit or further impede the activities of a provider of services established in another Member State where he lawfully provides similar services (see, to that effect, Case C‑118/96 Safir  [1998] ECR I‑1897, paragraph 22, and Joined Cases C‑544/03 and C‑545/03 Mobistar and Belgacom Mobile  [2005] ECR I‑7723, paragraph 29).
39. In the present case, it should be noted that, by making, pursuant to Article 59 of the CIR 1992, the deductibility of employers’ insurance contributions and premiums due in respect of supplementary pension and life assurance subject to the condition that they be paid to an insurance undertaking or welfare fund established in Belgium and, pursuant to Articles 145/1 and 145/3 of the CIR 1992, the tax reduction for personal supplementary pension and life assurance contributions in the form of deductions made by the employer from the employee’s remuneration, or in the form of deductions made by the undertaking from the remuneration of a director who is not under a contract of employment, subject to the condition that the contributions be paid to an insurance undertaking or welfare fund established in Belgium, the Belgian legislation has the effect of rendering the freedom to provide insurance services from other Member States more difficult than if it were purely within the Kingdom of Belgium. Those measures are liable to dissuade individuals from taking out insurance with foreign insurance companies. Consequently, those measures constitute obstacles to the freedom to provide services laid down in Article 49 EC.
44. Furthermore, both the Court of Justice and the Court of the European Free Trade Association (EFTA) have recognised the need to ensure that the rules of the EEA Agreement which are identical in substance to those of the Treaty are interpreted uniformly (judgment of the Court of Justice in Case C‑471/04 Keller Holding  [2006] ECR I‑2107, paragraph 48, and the case‑law cited, and Case C‑345/05 Commission  v Portugal  [2006] ECR I‑0000, paragraph 40, and of the EFTA Court in Case E‑1/03 EFTA Surveillance Authority  v Iceland [2003] EFTA Court Report 143, paragraph 27).
47. It follows, however, from well-established case‑law that national measures liable to hinder or make less attractive the exercise of fundamental freedoms guaranteed by the Treaty may nevertheless be allowed provided they pursue a legitimate objective compatible with the Treaty, are justified by imperative requirements in the general interest, are suitable for securing the attainment of the objective which they pursue, and do not go beyond what is necessary in order to attain it (see, to that effect, Case C‑9/02 De Lasteyrie du Saillant  [2004] ECR I‑2409, paragraph 49; Case C‑470/04 N  [2006] ECR I‑7409, paragraph 40; and Commission  v Denmark , paragraph 46).
52. First, as regards the establishment of that tax, it is clear that the first indent of Article 1(1) of Directive 77/799 provides for the exchange by the authorities of the Member States of any information that may enable them to effect a correct assessment of taxes on insurance premiums, in particular of the annual tax on insurance contracts laid down under Belgian law.
53. Second, as regards the payment of the annual tax on insurance contracts, it should be pointed out that, in accordance with Article 50(3) of Directive 2002/83, the Kingdom of Belgium may apply to those assurance undertakings which cover commitments situated within its territory its national provisions for measures to guarantee the collection of indirect taxes and parafiscal charges on insurance premiums in respect of contracts relating to risks situated in that Member State.
54. It is apparent from Article 177 of the CTAT that the insured person is personally liable for payment of the annual tax on insurance contracts where the contract concerned has been entered into with an insurer who is not established in Belgium and who does not have an agency, branch, representative or some other place of business or a representative responsible within the meaning of Article 178 of the CTAT, and the contract has not been entered into through a broker or other intermediary resident in Belgium.
55. It follows that Belgian law contains measures capable of fulfilling the objective of ensuring payment of that tax that are less prejudicial to the freedom to provide services than the obligation to appoint a representative responsible residing in Belgium.
70. Even if, in practice, the authorities of a Member State do not apply a national provision which is at variance with Community law, the principle of legal certainty nevertheless requires that that provision be amended (see, to that effect, Case C‑358/98 Commission  v Italy [2000] ECR I‑1255, paragraphs 16 and 17, and Case C‑160/99 Commission  v France  [2000] ECR I‑6137, paragraph 22).
72. Finally, as regards the complaint alleging infringement, by Article 364a, of the general right of freedom of movement for persons guaranteed by Article 18 EC with regard to persons who are not economically active, the same conclusion applies, for the same reasons (see, to that effect, Case C‑406/04 De Cuyper  [2006] ECR I‑6947, paragraphs 39 and 40).
76. It is to be noted, in that regard, that the rules prohibiting restrictions on freedom of movement and freedom of establishment laid down in Articles 28 and 31 of the EEA Agreement are identical to those established in Articles 39 EC and 43 EC.
79. Since the provisions of the Treaty and of the EEA Agreement on freedom of movement for workers, freedom of establishment and freedom movement for persons preclude the national provisions referred to in the preceding paragraph, it is not necessary to consider that legislation separately in the light of Article 56 EC on free movement of capital (see, to that effect, Commission  v Portugal , paragraph 45, and Commission  v Denmark , paragraph 76).