Commission of the European Communities v Federal Republic of Germany.
Date: 2008-01-17
9. In this regard, it is to be borne in mind that although it is true that the subject-matter of proceedings brought under Article 226 EC is circumscribed by the pre-litigation procedure provided for in that provision and that, consequently, the formal notice, the reasoned opinion and the application must be based on the same objections, that requirement cannot go so far as to mean that in every case exactly the same wording must be used in each, where the subject-matter of the proceedings has not been extended or altered (see, to that effect, Case C-490/04 Commission  v Germany  [2007] ECR I-0000, paragraphs 36 and 37).
10. In addition, the reasoned opinion must contain a coherent and detailed statement of the reasons which led the Commission to conclude that the State in question has failed to fulfil one of its obligations under the EC Treaty.  On the other hand, the letter of formal notice cannot be subject to such strict requirements of precision, since it cannot, of necessity, contain anything more than an initial brief summary of the complaints.  There is therefore nothing to prevent the Commission from setting out in detail in the reasoned opinion the complaints which it has already made more generally in the letter of formal notice (Case C-365/97 Commission  v Italy  [1999] ECR I-7773, paragraph 26).
15. In this regard it is sufficient to observe that, according to settled case-law, the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in the Member State at the end of the period laid down in the reasoned opinion and that the Court cannot take account of any subsequent changes (see, in particular, Case C-161/02 Commission  v France  [2003] ECR I‑6567, paragraph 6, and judgment of 18 July 2007 in Case C‑26/07 Commission  v Greece , not published in the ECR, paragraph 6).  Since it is established that the law abolishing the subsidy was adopted after the expiry of that period, it is not to be taken into consideration in these proceedings.
16. It is settled case-law that, although direct taxation falls within their competence, the Member States must none the less exercise that competence consistently with Community law (Case C‑446/03 Marks & Spencer  [2005] ECR I‑10837, paragraph 29; Case C‑345/05 Commission  v Portugal  [2006] ECR I‑10633, paragraph 10; and Case C‑104/66 Commission  v Sweden  [2007] ECR I‑671, paragraph 12).
18. Article 18 EC, which sets out in general terms the right of every citizen of the European Union to move and reside freely within the territory of the Member States, finds specific expression in Article 39 EC with regard to freedom of movement for workers and in Article 43 EC with regard to freedom of establishment ( Commission  v Portugal , paragraph 13; Commission  v Sweden , paragraph 15; and Case C‑318/05 Commission  v Germany  [2007] ECR I‑0000, paragraph 35).
20. In this connection it is to be borne in mind that any national of a Member State, irrespective of his place of residence and his nationality, who has exercised the right to freedom of movement for workers or freedom of establishment and who has been employed in a Member State other than that of residence falls within the ambit of Article 39 EC or of Article 43 EC, as the case may be (Case C‑152/03 Ritter-Coulais  [2006] ECR I‑1711, paragraph 31; Case C‑470/04 N  [2006] ECR I‑7409, paragraph 28; and Case C‑212/05 Hartmann  [2007] ECR I‑0000, paragraph 17).
21. What is more, the provisions of the Treaty on freedom of movement for persons are intended to facilitate the pursuit by Community nationals of occupational activities of all kinds throughout the European Community, and they preclude measures which might place those nationals at a disadvantage when they wish to pursue an economic activity in the territory of another Member State (Case C‑464/02 Commission  v Denmark  [2005] ECR I‑7929, paragraph 34; Commission  v Portugal , paragraph 15; Commission  v Sweden , paragraph 17; and Case C‑318/05 Commission  v Germany , paragraph 114).
22. Provisions preventing or deterring a national of a Member State from leaving his country of origin in order to exercise his right to freedom of movement constitute an obstacle to that freedom, even if they apply without regard to the nationality of the workers concerned ( Commission  v Denmark , paragraph 35; Commission  v Portugal , paragraph 16; Commission  v Sweden , paragraph 18; and Case C-318/05 Commission  v Germany , paragraph 115).
26. According to well-established case-law, however, national measures which are liable to hinder or make less attractive the exercise of fundamental freedoms guaranteed by the Treaty may nevertheless be allowed provided that they pursue an objective in the public interest, are appropriate to ensuring the attainment of that objective and do not go beyond what is necessary to attain the objective pursued ( Commission  v Portugal , paragraph 24, and Commission  v Sweden , paragraph 25).
27. In this case, the Federal Republic of Germany contends that the condition laid down in the first sentence of Paragraph 2(1) of the EigZulG is justified by the aim of encouraging the building of dwellings in its territory in order to ensure an adequate supply of housing.  However, on any view that condition goes beyond what is necessary to attain the objective pursued.
28. In point of fact, the objective of satisfying demand for housing is just as easily attained if the person liable in Germany to unlimited taxation of income chooses to establish his residence in another Member State rather than in Germany ( Commission  v Portugal , paragraph 35).
30. Second, with regard to persons liable in Germany to unlimited taxation of income who are not economically active, the same conclusion applies, for the same reasons, to the complaint relating to Article 18 EC.