État belge, SPF Finances v NN (L) International.
Date: 2016-05-26
21


It should be observed that, since questions concerning EU law enjoy a presumption of relevance, the Court may refuse to give a ruling on a question referred by a national court only where it is quite obvious that the interpretation, or the determination of validity, of a rule of EU law that is sought bears no relation 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 (see, inter alia, judgment of 16 June 2015 in Gauweiler and Others, C‑62/14, EU:C:2015:400, paragraph 25).
22


As regards that factual and legal material, Article 94 of the Rules of Procedure of the Court provides that the request for a preliminary ruling must contain inter alia a summary of the subject-matter of the dispute and the relevant findings of fact or, at least, an account of the facts on which the questions are based, the content of any national provisions applicable to the dispute in the main proceedings, and a statement of the reasons which prompted the referring court or tribunal to inquire about the interpretation of certain provisions of EU law, and the relationship between those provisions and the national legislation applicable to the main proceedings.
31


As for the substance, it follows from the second to fourth recitals of Directive 85/611 that, in order to ensure that UCITS units are marketed freely within the European Union, that directive sought to coordinate national laws governing UCITS, in order, first, to approximate, within the European Union, the conditions of competition between those undertakings, and, secondly, to ensure more effective and more uniform protection for unit-holders. To that end, that directive established common basic rules governing the authorisation, supervision, structure and activities of UCITS and the information which they must publish (judgment of 11 September 2014 in Gruslin, C‑88/13, EU:C:2014:2205, paragraph 33).
39


In addition, it should be observed that, when a national measure concerns both the freedom to provide services and the free movement of capital, the Court will in principle examine the measure in dispute in relation to only one of those two freedoms if it appears, in the circumstances of the case, that one of them is entirely secondary in relation to the other and may be considered together with it (see, to that effect, judgments of 3 October 2006 in Fidium Finanz, C‑452/04, EU:C:2006:631, paragraph 34, and 1 July 2010 in Dijkman and Dijkman-Lavaleije, C‑233/09, EU:C:2010:397, paragraph 33).
40


However, as the Advocate General observed in points 48 and 49 of his Opinion, the annual tax on UCIs, in so far as it is levied on the net assets of UCIs governed by foreign law, is linked to the acquisition by residents of units of foreign undertakings which may or may not be dealt in on a stock exchange. That transaction is one of the capital movements set out in part A, relating to ‘[t]ransactions in units of [UCIs]’ of Section IV of Annex I to Council Directive 88/361/EEC of 24 June 1988 for the implementation of Article 67 of the Treaty (repealed by the Treaty of Amsterdam) (OJ 1988 L 178, p. 5), entitled ‘Operations in units of [UCIs]’, the indicative value of which was acknowledged by the Court (see, to that effect, judgments of 7 June 2012 in VBV — Vorsorgekasse, C‑39/11, EU:C:2012:327, paragraph 21, and 21 May 2015 in Wagner-Raith, C‑560/13, EU:C:2015:347, paragraphs 23 and 24). Such a tax therefore comes under the free movement of capital.
41


Although the freedom to provide services is also liable to be affected by taxation such as the annual tax on UCIs, in so far as the latter may have effects on the financial services offered in Belgium by UCIs governed by foreign law, that freedom is secondary in relation to the free movement of capital and may be considered together with it.
43


In that regard, it should be observed that, according to the settled case-law of the Court, the Member States must exercise their competence in the area of direct taxation consistently with EU law and, in particular, with the fundamental freedoms guaranteed by the Treaty (see, inter alia, judgment of 23 February 2016 in Commission v Hungary, C‑179/14, EU:C:2016:108, paragraph 171 and the case-law cited).
44


As regards the free movement of capital, it also follows from the Court’s settled case-law that the measures prohibited by Article 56(1) EC, as restrictions on the movement of capital, include those which are such as to discourage non-residents from making investments in a Member State or to discourage that Member State’s residents from doing so in other States (see, to that effect, judgment of 10 February 2011 in Haribo Lakritzen Hans Riegel and Österreichische Salinen, C‑436/08 and C‑437/08, EU:C:2011:61, paragraph 50 and the case-law cited).
47


The Court has held on many occasions that, in the absence of harmonisation at EU level, the disadvantages which could arise from the parallel exercise of tax competences by different Member States, to the extent that such an exercise is not discriminatory, do not constitute restrictions on the freedom of movement (judgments of 8 December 2011 in Banco Bilbao Vizcaya Argentaria, C‑157/10, EU:C:2011:813, paragraph 38 and the case-law cited, and 21 November 2013 in X, C‑302/12, EU:C:2013:756, paragraph 28) and, moreover, the Member States are not obliged to adapt their own tax systems to the different tax systems of other Member States, in order inter alia to eliminate double taxation (see, to that effect, judgment of 12 February 2009 in Block, C‑67/08, EU:C:2009:92, paragraph 31).
52


However, it is apparent from the order for reference that NN (L) disputes, in the main proceedings, the lawfulness of the tax imposed on it, arguing, inter alia, that the provisions of the Inheritance Tax Code governing the annual tax on UCIs, including those relating to penalties, are not consistent with EU law. The question asked by the referring court is not therefore clearly unrelated to the subject-matter of the dispute in the main proceedings. As for the hypothetical nature of the penalty, a party cannot be required to infringe national law and, as a result, have a penalty imposed on it in order for it to be able to invoke a breach of EU law before the national court (see, to that effect, judgment of 13 March 2007 in Unibet, C‑432/05, EU:C:2007:163, paragraph 64). The sixth question is therefore admissible.
58


It should be observed in that regard that a restriction on the freedom to provide services may be accepted only if it is justified by overriding reasons in the public interest. Even if that were so, application of that restriction would still have to be such as to ensure achievement of the aim pursued and not go beyond what is necessary for that purpose (judgment of 18 October 2012 in X, C‑498/10, EU:C:2012:635, paragraph 36 and the case-law cited).
59


The Court has already held that the need to ensure the effective collection of a tax may constitute an overriding reason in the public interest capable of justifying a restriction on the freedom to provide services (judgments of 18 October 2012 in X, C‑498/10, EU:C:2012:635, paragraph 39, and 19 June 2014 in Strojírny Prostějov and ACO Industries Tábor, C‑53/13 and C‑80/13, EU:C:2014:2011, paragraph 46). It has also observed that the imposition of penalties, including criminal penalties, may be considered to be necessary in order to ensure compliance with national rules, subject, however, to the condition that the nature and amount of the penalty imposed is in each individual case proportionate to the gravity of the infringement which it is designed to penalise (judgment of 3 December 2014 in De Clercq and Others, C‑315/13, EU:C:2014:2408, paragraph 73 and the case-law cited).