Belgian State - SPF Finances v Truck Center SA.
Date: 2008-12-22
22. It should be noted at the outset that, in the absence of any unifying or harmonising measures at Community level, in particular under the second indent of Article 293 EC, the Member States retain the power to define, by treaty or unilaterally, the criteria for allocating their powers of taxation, particularly with a view to eliminating double taxation (see Case C‑336/96 Gilly  [1998] ECR I‑2793, paragraphs 24 and 30; Case C‑307/97 Saint-Gobain [1999] ECR I‑6161, paragraph 57; Case C‑376/03 D . [2005] ECR I‑5821, paragraph 52; Case C‑265/04 Bouanich  [2006] ECR I‑923, paragraph 49; Case C‑470/04 N [2006] ECR I‑7409, paragraph 44; Case C‑374/04 Test Claimants in Class IV of the ACT Group Litigation  [2006] ECR I‑11673, paragraph 52; and Case C‑170/05 Denkavit Internationaal and Denkavit France  [2006] ECR I‑11949, paragraph 43).
23. However, the fact remains that, as far as the exercise of the power of taxation so allocated is concerned, the Member States may not disregard Community rules (see Saint-Gobain , paragraph 58, and Denkavit Internationaal and Denkavit France , paragraph 44). In particular, such an allocation of fiscal jurisdiction does not permit Member States to introduce discriminatory measures which are contrary to the Community rules (Bouanich,  paragraph 50, and Denkavit Internationaal and Denkavit France , paragraph 44).
25. It should be noted in this regard that, in accordance with settled case-law, national provisions which apply to holdings by nationals of the Member State concerned in the capital of a company established in another Member State, giving them definite influence on the company’s decisions and allowing them to determine its activities, come within the scope of the provisions of the Treaty on freedom of establishment (Case C‑196/04 Cadbury Schweppes and Cadbury Schweppes Overseas  [2006] ECR I‑7995, paragraph 31; Case C‑524/04 Test Claimants in the Thin Cap Group Litigation [2007] ECR I‑2107, paragraph 27; and Case C‑298/05 Columbus Container Services  [2007] ECR I‑10451, paragraph 29).
31. Freedom of establishment, which Article 52 of the Treaty grants to Community nationals and which includes the right to take up and pursue activities as self-employed persons and to set up and manage undertakings, under the conditions laid down for its own nationals by the law of the Member State where such establishment is effected, entails, in accordance with Article 58 of the Treaty, for companies or firms formed in accordance with the law of a Member State and having their registered office, central administration or principal place of business within the European Community, the right to exercise their activity in the Member State concerned through a subsidiary, branch or agency (see Case C‑264/96 ICI  [1998] ECR I‑4695, paragraph 20; Saint-Gobain , paragraph 35; Cadbury Schweppes and Cadbury Schweppes Overseas , paragraph 41; Test Claimants in Class IV of the ACT Group Litigation , paragraph 42; and Denkavit Internationaal and Denkavit France , paragraph 20).
32. In the case of companies, it should be borne in mind that their registered office for the purposes of Article 58 of the Treaty serves, in the same way as nationality in the case of individuals, as the connecting factor with the legal system of a Member State. Acceptance of the proposition that the Member State of residence may freely apply different treatment merely by reason of the fact that the registered office of a company is situated in another Member State would deprive Article 52 of the Treaty of all meaning. Freedom of establishment thus aims to guarantee the benefit of national treatment in the host Member State, by prohibiting any discrimination based on the place in which companies have their seat (see Test Claimants in Class IV of the ACT Group Litigation , paragraph 43; Denkavit Internationaal and Denkavit France , paragraph 22; and Case C‑284/06 Burda  [2008] ECR I-0000, paragraph 77).
33. Furthermore, it is settled case-law that all measures which prohibit, impede or render less attractive the exercise of freedom of establishment must be regarded as constituting such restrictions (see Case C‑55/94 Gebhard  [1995] ECR I‑4165, paragraph 37; Case C‑442/02 CaixaBank France  [2004] ECR I‑8961, paragraph 11; and Columbus Container Services , paragraph 34).
36. In order to determine whether a difference in tax treatment is discriminatory, it is, however, necessary to consider whether, having regard to the national measure at issue, the companies concerned are in an objectively comparable situation ( Test Claimants in Class IV of the ACT Group Litigation , paragraph 46).
37. According to well-established case-law, discrimination is defined as treating differently situations which are identical, or as treating in the same way situations which are different (see Case C‑279/93 Schumacker  [1995] ECR I‑225, paragraph 30; Case C‑80/94 Wielockx  [1995] ECR I‑2493, paragraph 17; and Test Claimants in Class IV of the ACT Group Litigation , paragraph 46).
38. In relation to direct taxes, the situations of residents and non‑residents are, as a rule, not comparable ( Schumacker , paragraph 31, and Wielockx , paragraph 18).
39. A difference in the treatment of resident and non-resident taxpayers cannot therefore in itself be categorised as discrimination within the meaning of the Treaty ( Wielockx , paragraph 19, and Denkavit Internationaal and Denkavit France , paragraph 24).
41. In that regard, the difference in treatment between companies receiving income from capital, established by the tax legislation at issue in the main proceedings, consisting in the application of different taxation arrangements to companies established in Belgium and to those established in another Member State, relates to situations which are not objectively comparable.
49. Moreover, in addition to the fact that it relates to situations which are not objectively comparable, the difference in treatment resulting from the tax legislation at issue in the main proceedings does not necessarily procure an advantage for resident recipient companies because, firstly, as was pointed out by the Belgian Government at the hearing, those companies are obliged to make advance payments of corporation tax and, secondly, the amount of withholding tax deducted from the interest paid to a non-resident company is significantly lower than the corporation tax charged on the income of resident companies which receive interest.
50. In those circumstances, that difference in treatment does not constitute a restriction of the freedom of establishment within the terms of Article 52 of the Treaty.
51. As to whether there is a restriction of the movement of capital within the terms of Article 73b of the Treaty, suffice it to hold that the conclusion arrived at in the preceding paragraph of this judgment applies in equal measure to the Treaty provisions relating to the free movement of capital (Case C‑446/04 Test Claimants in the FII Group Litigation  [2006] ECR I‑11753, paragraph 60, and Columbus Container Services , paragraph 56).