Veronsaajien oikeudenvalvontayksikkö v A Oy.
Date: 2012-07-19
15. As regards the EEA Agreement, it should be recalled that one of the principal aims of that agreement is to provide for the fullest possible realisation of the free movement of goods, persons, services and capital within the whole European Economic Area (EEA), so that the internal market established within the European Union is extended to the EFTA States. From that angle, several provisions of the EEA Agreement are intended to ensure as uniform an interpretation as possible thereof throughout the EEA (see Opinion 1/92 [1992] ECR I-2821). It is for the Court, in that context, to ensure that the rules of the EEA Agreement which are identical in substance to those of the FEU Treaty are interpreted uniformly within the Member States (Case C-540/07 Commission  v Italy  [2009] ECR I-10983, paragraph 65, and Case C-72/09 Établissements Rimbaud  [2010] ECR I-10659, paragraph 20).
16. Furthermore, it is relevant to point out that, according to settled case-law, while direct taxation falls within their competence, the Member States must none the less exercise that competence consistently with EU law (see, inter alia, Case C-319/02 Manninen  [2004] ECR I-7477, paragraph 19; Case C-292/04 Meilicke and Others  [2007] ECR I-1835, paragraph 19; Case C-157/05 Holböck  [2007] ECR I-4051, paragraph 21; and Case C-451/05 ELISA [2007] ECR I-8251, paragraph 68). By the same token, that competence does not allow Member States to apply measures which are contrary to the freedoms of movement guaranteed by similar provisions of the EEA Agreement ( Établissements Rimbaud , paragraph 23).
21. In that connection, the Court has already held that the rules prohibiting restrictions on the freedom of establishment, set out in Article 31 of the EEA Agreement, are identical to those imposed by Article 49 TFEU (Case C-471/04 Keller Holding  [2006] ECR I-2107, paragraph 49, and Case C-157/07 Krankenheim Ruhesitz am Wannsee-Seniorenheimstatt  [2008] ECR I-8061, paragraph 24).
24. The Court also stated that the concept of establishment within the meaning of the FEU Treaty is a very broad one, implying that a European Union national may participate, on a stable and continuous basis, in the economic life of a Member State other than his State of origin and profit therefrom, so contributing to economic and social interpenetration within the Union in the sphere of activities as a self-employed person (see, ELISA , paragraph 63). Freedom of establishment thus seeks to guarantee the benefit of national treatment in the host Member State, by prohibiting any discrimination, even minimal, based on the place in which companies have their seat (see Case C-170/05 Denkavit International and Denkavit France  [2006] ECR I-11949, paragraph 22).
25. It is settled case-law that that all measures which prohibit, impede or render less attractive the exercise of that freedom must be regarded as such restrictions (see Krankenheim Ruhesitz am Wannsee-Seniorenheimstatt , paragraph 30).
27. The difference in treatment thus noted is not explained by a difference in the objective situation. The tax treatment of an exchange of shares to which a domestic company is subject is, in a situation such as that at issue in the main proceedings, determined solely by the place where the acquiring company has its registered office. Article 31 of the EEA Agreement prohibits any discrimination based on the place in which companies have their registered office (see, to that effect Case C-284/06 Burda [2008] ECR I-4571, paragraph 77 and the case-law cited).
30. It is clear from the Court’s case-law that a restriction on the freedom of establishment is permissible only if it is justified by overriding reasons in the public interest. It is further necessary, in such a case, that its application be appropriate to ensuring the attainment of the objective in question and not go beyond what is necessary to attain it (see, Krankenheim Ruhesitz am Wannsee-Seniorenheimstatt , paragraph 40).
32. However, the mere fact that, in an exchange of shares, the acquiring company has its place of management in a third country that is a party to the EEA Agreement cannot set up a general presumption of tax evasion and justify a measure which compromises the exercise of a fundamental freedom guaranteed by the EEA Agreement (see, to that effect, Case C-478/98 Commission v Belgium  [2000] ECR I-7587, paragraph 45; Case C-436/00 X and Y  [2002] ECR I-10829, paragraph 62; Case C-334/02 Commission  v France  [2004] ECR I-2229, paragraph 27; and Case C-371/10 National Grid Indus  [2011] ECR I-12273, paragraph 84).
33. As to the need to protect the effectiveness of fiscal supervision, the Court has held that the taxpayer should not be precluded a priori from providing relevant documentary evidence enabling the tax authorities of the Member State imposing the tax to ascertain, clearly and precisely, that he is not attempting to avoid or evade the payment of taxes (Case C-101/05 A  [2007] ECR I-11531, paragraph 59 and the case-law cited).
34. However, that case-law, concerning restrictions on the exercise of the freedoms of movement within the European Union, cannot be transposed in its entirety to the freedoms guaranteed by the EEA Agreement since the exercise of the latter take place in a different legal context (see, to that effect, A , paragraph 60, and Établissements Rimbaud , paragraph 40).
35. It must be observed, in that regard, that the framework for cooperation between the competent authorities of the Member States established by 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) and Council Directive 2011/16/EU of 15 February 2011 on administrative cooperation in the field of taxation and repealing Directive 77/799 (OJ 2011 L 64, p. 1) does not exist between those authorities and the competent authorities of a non-member State where that State has not entered into any undertaking of mutual assistance (see, Établissements Rimbaud , paragraph 41).
36. In particular, as regards the States that are parties to the EEA Agreement, where the legislation of a Member State makes the grant of a tax advantage dependent on satisfying requirements, compliance with which can be verified only by obtaining information from the competent authorities of a third country that is a party to the EEA Agreement, it is in principle legitimate for the Member State to refuse to grant that advantage if — in particular, because that third country is not bound under an agreement to provide information — it proves impossible to obtain such information from that country (see, Établissements Rimbaud , paragraph 44).
38. In those circumstances, the Member State concerned cannot base its arguments on the need to preserve the effectiveness of tax supervision in order to justify the difference in treatment found in paragraph 27 of the present judgment (see, to that effect, ELISA , paragraphs 98 to 101).