Gerhard Dijkman and Maria Dijkman-Lavaleije v Belgische Staat.
Date: 2010-07-01
20. It should be recalled that, according to well-established case law, although direct taxation falls within their competence, the Member States must none the less exercise that competence consistently with European Union law (see, inter alia , Case C-374/04 Test Claimants in Class IV of the ACT Group Litigation  [2006] ECR I-11673, paragraph 36; Case C-379/05 Amurta  [2007] ECR I-9569, paragraph 16; and Case C-540/07 Commission  v Italy  [2009] ECR I-0000, paragraph 28).
23. It should be borne in mind, first, that Article 49 EC requires the abolition of all restrictions on the freedom to provide services, even if those restrictions apply without distinction to national providers of services and to those from other Member States, when they are liable to prohibit, impede or render less advantageous the activities of a service provider established in another Member State where it lawfully provides similar services (see Case C‑42/07 Liga Portuguesa de Futebol Profissional and Bwin International  [2009] ECR I‑0000, paragraph 51 and the case-law cited).
24. Furthermore, it is settled case-law that Article 49 EC confers rights not only on the provider of services but also on the recipient (see, to that effect, Case C‑290/04 FKP Scorpio Konzertproduktionen  [2006] ECR I‑9461, paragraph 32 and the case-law cited).
25. Secondly, measures taken by a Member State which are liable to dissuade its residents from obtaining loans or making investments in other Member States constitute restrictions on movements of capital within the meaning of Article 56(1) EC (see, inter alia , Case C-478/98 Commission  v Belgium  [2000] ECR I‑7587, paragraph 18; and Joined Cases C-155/08 and C-157/08 X and Passenheim-van Schoot  ECR I‑0000, paragraph 33).
26. It is apparent from settled case-law that, in order to determine whether national legislation falls within the scope of one or other of the fundamental freedoms guaranteed by the Treaty, the purpose of the legislation concerned must be taken into consideration (see, to that effect, Case C‑157/05 Holböck  [2007] ECR I-4051, paragraph 22 and the case-law cited).
31. The introduction by a Member State of a difference in treatment on the basis of the place of investment of capital thus has the effect of discouraging residents of that Member State from investing their capital in a company established in another Member State and also has a restrictive effect on companies established in other Member States in that it constitutes an obstacle to their raising capital in the first Member State (see, to that effect, Case C-446/04 Test Claimants in the FII Group Litigation [2006] ECR I-11753, paragraph 166, and Case C‑436/06 Grønfeldt  [2007] ECR I-12357, paragraph 14).
33. However, it is apparent from the case-law that 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 main proceedings, that one of them is entirely sec ondary in relation to the other and may be considered together with it (Case C‑452/04 Fidium Finanz [2006] ECR I-9521, paragraph 34; see also, by analogy, Case C‑182/08 Glaxo Wellcome  [2009] ECR I-0000, paragraph 37).
41. In accordance with the case-law, unfavourable tax treatment contrary to a fundamental freedom cannot be considered to be compatible with European Union law as a result of the existence of other advantages, even supposing that such advantages exist (see, to that effect, Case C‑35/98 Verkooijen  [2000] ECR I-4071, paragraph 61, and Amurta , paragraph 75).
42. Moreover, a restriction on a fundamental freedom is prohibited by the Treaty, even if it is of limited scope or minor importance (see, to that effect, Case C-34/98 Commission  v France  [2000] ECR I-995, paragraph 49; Case C-9/02 de Lasteyrie du Saillant  [2004] ECR I-2409, paragraph 43; and Case C-170/05 Denkavit Internationaal and Denkavit France  [2006] ECR I-11949, paragraph 50).
49. As is apparent from settled case-law, national measures restricting the free movement of capital may be justified on the grounds set out in Article 58 EC or by overriding reasons in the public interest provided that they are appropriate to secure 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-112/05 Commission  v Germany  [2007] ECR I‑8995, paragraphs 72 and 73 and the case‑law cited).
54. With regard to the grounds of justification thus mentioned, it must be pointed out that the Court has already acknowledged that the need to maintain the coherence of a tax system can justify a restriction on the exercise of fundamental freedoms guaranteed by the Treaty (Case C‑204/90 Bachmann  [1992] ECR I-249, paragraph 28; Case C‑319/02 Manninen  [2004] ECR I-7477, paragraph 42; and Case C‑418/07 Papillon  [2008] ECR I-8947, paragraph 43).
55. For an argument based on such a justification to succeed, the Court requires, however, that a direct link be established between the tax advantage concerned and the offsetting of that advantage by a particular tax levy, with the direct nature of that link falling to be examined in the light of the objective pursued by the rules in question (see Papillon , paragraph 44 and the case-law cited).
58. Secondly, the Court has acknowledged 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 fundamental freedoms guaranteed by the Treaty (see, to that effect, X and Passenheim-van Schoot , paragraph 45 and the case-law cited).
60. Moreover, the Court has already held that practical difficulties cannot of themselves justify the infringement of a fundamental freedom guaranteed by the Treaty (see Papillon , paragraph 54 and the case-law cited).