Ingrid Schmelz v Finanzamt Waldviertel.
Date: 2010-10-26
28. In that regard, it should be borne in mind that, in the procedure under Article 234 EC, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation and/or the validity of EU law, the Court is in principle bound to give a ruling (see, to that effect, Case C‑415/93 Bosman [1995] ECR I‑4921, paragraph 59, and Joined Cases C‑317/08 to C‑320/08 Alassini and Others [2010] ECR I‑0000, paragraph 25).
29. Thus, the Court may reject a request for a preliminary ruling submitted by a national court only where it is quite obvious that the interpretation of EU law that is sought is unrelated to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it ( Alassini and Others , paragraph 26).
30. Furthermore, it is clear from the second paragraph of Article 234 EC that it is for the national court to decide at what stage in the proceedings it is appropriate for that court to refer a question to the Court of Justice for a preliminary ruling (Joined Cases 36/80 and 71/80 Irish Creamery Milk Suppliers Association and Others [1981] ECR 735, paragraph 5, and Case C‑470/03 AGM‑COS.MET [2007] ECR I‑2749, paragraph 45).
36. First, freedom of establishment, which Article 43 EC confers on EU nationals and which includes the right for them to take up and pursue activities as self‑employed persons and to set up and manage undertakings, under the same conditions as those laid down for its own nationals by the law of the Member State where such establishment is effected, entails, in accordance with Article 48 EC, for companies or firms formed in accordance with the law of the Member State and having their registered office, central administration or principal place of business within the European Union, the right to exercise their activity in the Member State concerned through a subsidiary, a branch or an agency (Case C‑386/04 Centro di Musicologia Walter Stauffer [2006] ECR I‑8203, paragraph 17 and case‑law cited).
37. According to the case-law of the Court, the concept of establishment within the meaning of the Treaty is a very broad one, allowing an EU national to participate, on a stable and continuous basis, in the economic life of a Member State other than his State of origin and to profit therefrom, so contributing to economic and social interpenetration within the European Union in the sphere of activities as self-employed persons ( Centro di Musicologia Walter Stauffer , paragraph 18 and case‑law cited).
38. However, in order for the provisions relating to freedom of establishment to apply, it is generally necessary to have secured a permanent presence in the host Member State and, where immovable property is purchased and held, that property should be actively managed ( Centro di Musicologia Walter Stauffer , paragraph 19). It must be possible to establish the existence of that permanent presence on the basis of objective factors which are ascertainable having regard, in particular, to the extent of its physical existence in terms of premises, staff and equipment (see, to that effect Case C‑196/04 Cadbury Schweppes and Cadbury Schweppes Overseas [2006] ECR I‑7995, paragraph 67).
41. Next, as regards freedom to provide services, first, the letting of immovable property must be considered to be a provision of services for remuneration within the meaning of the first paragraph of Article 50 EC (see, to that effect, Case C‑70/09 Hengartner and Gasser [2010] ECR I‑0000, paragraph 32). Second, the fact that Ms Schmelz has been letting an apartment, located in Austria, for a number of years does not preclude Article 49 EC from being applicable.
42. In that regard, the Court has held that services, within the meaning of the Treaty, may cover services varying widely in nature, including services which are provided over an extended period, even over several years. No provision of the Treaty affords a means of determining, in an abstract manner, the duration or frequency beyond which the supply of a service or of a certain type of service in another Member State can no longer be regarded as the provision of services within the meaning of the Treaty (see Case C‑215/01 Schnitzer [2003] ECR I‑14847, paragraphs 30 and 31).
44. Lastly, as regards whether Article 12 EC, which lays down a general prohibition of all discrimination on grounds of nationality, is applicable to the facts of the case, it should be noted that that provision applies independently only to situations governed by EU law for which the Treaty lays down no specific rules of non-discrimination (Case C‑311/08 SGI [2010] ECR I‑0000, paragraph 31 and case‑law cited).
46. It is settled case-law that all of the Treaty provisions on freedom of movement for persons are intended to facilitate the pursuit by EU nationals of occupational activities of all kinds throughout the European Union, and preclude measures which might place them at a disadvantage when they wish to pursue an economic activity in the territory of another Member State ( Bosman , paragraph 94, and Case C‑314/08 Filipiak [2009] ECR I‑11049, paragraph 58).
47. In that regard, it should be borne in mind that Article 49 EC requires the abolition of all restrictions on the freedom to provide services, when they are liable to prohibit, impede or render less advantageous the activities of a service provider established in another Member State (see, to that effect, Case C‑233/09 Dijkman and Dijkman-Lavaleije [2010] ECR I‑0000, paragraph 23 and case‑law cited).
48. It is also clear from case‑law that Article 49 EC prohibits not only overt discrimination by reason of nationality but also all covert forms of discrimination which, by the application of other criteria of differentiation, lead in fact to the same result. That is true, in particular, of a measure under which a distinction is drawn on the basis of residence, in that that requirement is liable to operate mainly to the detriment of nationals of other Member States, since non-residents are in the majority of cases foreigners (see Case C‑388/01 Commission v Italy [2003] ECR I‑721, paragraphs 13 and 14 and case-law cited).
49. The case in which tax provisions which apply to cross‑border economic activities are less favourable than those which apply to an economic activity pursued within the borders of that Member State constitutes an example of a restriction which is prohibited by Article 49 EC (see Filipiak , paragraph 62).
50. It should be noted, in addition, that the prohibition on restrictions on freedom to provide services applies not only to national measures but also to measures adopted by the European Union institutions (see, by analogy in relation to the free movement of goods, Case C‑114/96 Kieffer and Thill  [1997] ECR I‑3629, paragraph 27 and case‑law cited).
57. In that regard, it is clear from the case‑law that the need to guarantee the effectiveness of fiscal supervision constitutes an overriding reason in the public interest capable of justifying a restriction on the exercise of the freedoms of movement guaranteed by the Treaty (Case C‑318/07 Persche [2009] ECR I‑359, paragraph 52).
58. However, for a restrictive measure to be justified, it must comply with the principle of proportionality, in that it must be appropriate for securing the attainment of the objective it pursues and must not go beyond what is necessary to attain it ( Persche , paragraph 52).
63. In that regard, it must be pointed out, first, that the objective which consists in guaranteeing the effectiveness of fiscal supervision in order to combat possible tax evasion, avoidance and abuse, the need for which was recalled in paragraph 57, cannot be attained in the absence of relevant data. Second, as the Advocate General stated in point 33 of her Opinion, the scheme for small undertakings provides for administrative simplifications intended to support the creation, activities and competitiveness of small undertakings, and to retain a reasonable relationship between the administrative charges connected with fiscal supervision and the very small amounts of tax to be reckoned with.
68. Moreover, such a dearth of information could be remedied only by the introduction of formalities such as those provided for in Articles 213 to 271 of the VAT Directive. However, as has been noted in paragraph 63 above, the scheme for small undertakings is specifically aimed at sparing small undertakings and the tax authorities from such formalities.