Helga Petersen and Peter Petersen v Finanzamt Ludwigshafen.
Date: 2013-02-28
23. According to settled case-law, in the procedure laid down by Article 267 TFEU providing for cooperation between national courts and the Court of Justice, it is for the latter to provide the national court with an answer which will be of use to it and enable it to determine the case before it. To that end, the Court may have to reformulate the question referred to it (see, inter alia, Case C-286/05 Haug  [2006] ECR I-4121, paragraph 17; Case C-420/06 Jager  [2008] ECR I-1315, paragraph 46; and Case C-157/10 Banco Bilbao Vizcaya Argentaria  [2011] ECR I-13023, paragraph 18).
24. Similarly, it is also settled case-law that, in order to provide a useful reply to the court which has referred to it a question for a preliminary ruling, the Court may be required to take into consideration rules of European Union law to which the national court did not refer in its questions (see, inter alia, Case C-60/03 Wolff & Müller  [2004] ECR I-9553, paragraph 24; Case C-153/03 Weide  [2005] ECR I-6017, paragraph 25; Case C-513/03 van Hilten-van der Heijden  [2006] ECR I-1957, paragraph 26; and Banco Bilbao Vizcaya Argentaria , cited above, paragraph 19).
28. It follows 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 TFEU, the purpose of the legislation concerned must be taken into consideration (see Case C-233/09 Dijkman and Dijkman-Lavaleije [2010] ECR I-6649, paragraph 26 and the case-law cited).
30. First, it must be noted that, for the purposes of Article 45 TFEU, any person who pursues activities which are real and genuine, to the exclusion of activities on such a small scale as to be regarded as purely marginal and ancillary, must be regarded as a ‘worker’. According to the case-law of the Court, the essential feature of an employment relationship is that, for a certain period of time, a person performs services for and under the direction of another person in return for which he receives remuneration (see, inter alia, Case 66/85 Lawrie-Blum  [1986] ECR 2121, paragraph 17; Case C-138/02 Collins  [2004] ECR I-2703, paragraph 26; and Case C-456/02 Trojani  [2004] ECR I-7573, paragraph 15).
31. Second, it should be noted that the first paragraph of Article 57 TFEU provides that services are to be considered to be ‘services’ within the meaning of the Treaties where they are normally provided for remuneration, in so far as they are not governed by the provisions relating to freedom of movement for goods, capital and persons. Furthermore, it follows from the case-law of the Court that the provisions relating to the freedom to provide services are connected to activities carried out by independent service providers (see, to that effect, Case C-398/95 SETTG  [1997] ECR I-3091, paragraph 7).
34. It should be borne in mind that any national of the European Union who, irrespective of his place of residence and his nationality, has exercised the right to freedom of movement for workers and who has been employed in a Member State other than that of his residence come within the scope of Article 45 TFEU (see, to that effect, Case C-385/00 de Groot  [2002] ECR I-11819, paragraph 76 and the case-law cited).
35. Moreover, it is settled case-law that all the provisions of the Treaty relating to the free movement of persons are intended to facilitate the pursuit by European Union nationals of occupational activities of all kinds throughout the European Union, and preclude measures which might place such nationals at a disadvantage when they wish to pursue an economic activity in the territory of another Member State (Case C-370/90 Singh  [1992] ECR I-4265, paragraph 16; Case C-18/95 Terhoeve  [1999] ECR I-345, paragraph 37; and de Groot , cited above, paragraph 77).
36. Even if, according to their wording, the rules on freedom of movement for workers are intended, in particular, to secure the benefit of national treatment in the host State, they also preclude the State of origin from obstructing the freedom of one of its nationals to accept and pursue employment in another Member State (see, to that effect, Terhoeve , paragraphs 27 to 29, and de Groot , paragraph 79).
39. In that regard, it must be stated that the Court has already had occasion to point out that, where a case concerns a national of a Member State who is an employee of a company established in another Member State, in principle such a case comes within the scope of the provisions of European Union law on the free movement of workers (see, to that effect, Case 237/83 Prodest  [1984] ECR 3153, paragraph 5).
40. The Court has also ruled that the provisions of European Union law on the free movement of workers apply in judging all legal relationships in so far as those relationships, by reason either of the place where they are entered into or of the place where they take effect, can be located within the European Union (see, to that effect, Prodest , cited above, paragraph 6).
41. Provisions of European Union law may apply to professional activities pursued outside the territory of the European Union as long as the employment relationship retains a sufficiently close link with the European Union (see, to that effect, inter alia, Prodest , cited above, paragraph 6; Case 9/88 Lopes da Veiga  [1989] ECR 2989, paragraph 15; and Case C-60/93 Aldewereld  [1994] ECR I-2991, paragraph 14). That principle must be deemed to extend also to cases in which there is a sufficiently close link between the employment relationship, on the one hand, and the law of a Member State and thus the relevant rules of European Union law, on the other (Case C-214/94 Boukhalfa  [1996] ECR I-2253, paragraph 15).
42. In a situation such as the one at issue in the case in the main proceedings, a link of that kind exists due to the fact that a European Union citizen, who is resident in a Member State, has been engaged by an undertaking established in another Member State on whose behalf he carries on his activities. In addition, according to the applicant in the main proceedings, and subject to the findings of the referring court on that point, the employment contract between him and his employer – an undertaking situated in Denmark – has been concluded under Danish law. Moreover, as the German Government points out, and subject to the findings of the referring court, Mr Petersen is covered by social insurance in Denmark and the account into which his salary is paid in situated in that Member State.
47. A measure which constitutes an obstacle to freedom of movement for workers can be accepted only if it pursues a legitimate aim compatible with the Treaty and is justified by overriding reasons in the public interest. Even if that were so, application of that measure would still have to be such as to ensure achievement of the objective in question and not go beyond what is necessary for that purpose (see Case C-325/08 Olympique Lyonnais  [2010] ECR I-2177, paragraph 38, and Case C-461/11 Radziejewski  [2012] ECR, paragraph 33).
50. In that regard, the Court has already held that the need to guarantee the effectiveness of fiscal supervision constitutes an overriding requirement of general interest capable of justifying a restriction on the exercise of freedom of movement guaranteed by the Treaty (see, inter alia, Case C-101/05 A  [2007] ECR I-11531, paragraph 55, and Case C-318/10 SIAT  [2012] ECR, paragraph 36).
51. However, a Member State cannot rely on the fact that it may be impossible to seek cooperation from another Member State in conducting inquiries or collecting information in order to justify a refusal to grant a tax advantage. There is no reason why the tax authorities concerned should not request from the taxpayer the evidence that they consider they require in order to effect a correct assessment of the taxes and duties concerned and, where appropriate, refuse the exemption applied for if that evidence is not supplied (see Case C-451/05 ELISA  [2007] ECR I-8251, paragraph 95).
52. It cannot be ruled out, as a matter of principle, that the taxpayer may be in a position to provide relevant documentary evidence enabling the tax authorities of the Member State imposing the tax to ascertain, clearly and precisely, whether he satisfies the requirements for receiving the tax advantage in question (see, to that effect, Case C-254/97 Baxter and Others  [1999] ECR I-4809, paragraph 20; Case C-39/04 Laboratoires Fournier  [2005] ECR I-2057, paragraph 25; ELISA , cited above, paragraph 96; and A , cited above, paragraph 59).
55. It is true that the Court has also ruled that, where the legislation of a Member State makes the grant of a tax advantage dependent on the satisfaction of requirements, compliance with which can be verified only by obtaining information from the competent authorities of a third State, it is, in principle, legitimate for that Member State to refuse to grant that advantage if, in particular, because that third State is not under any obligation pursuant to a convention or agreement to provide information, it proves impossible to obtain such information from that State ( A , cited above, paragraph 63, and Case C-318/07 Persche  [2009] ECR I-359, paragraph 70). 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 third State where that State has not entered into any undertaking of mutual assistance (Case C-48/11 A  [2012] ECR, paragraph 35).