European Commission v Kingdom of Belgium.
Date: 2013-06-06
40. As a preliminary point, it should be noted that, according to settled case-law of the Court of Justice, although direct taxation falls within their competence, the Member States must none the less exercise that competence in a manner consistent with European Union law (see Case C‑48/11 A  [2012] ECR I-0000, paragraph 16 and the case-law cited).
41. It should also be borne in mind that the provision of banking services constitutes a service within the meaning of Article 57 TFEU and that Article 56 TFEU precludes the application of any national legislation which, without objective justification, impedes a provider of services from actually exercising the freedom to provide them (see, to that effect, Case C‑150/04 Commission v Denmark  [2007] ECR I‑1163, paragraph 37 and the case-law cited).
42. With reference to the single market and in order to permit the achievement of its objectives, Article 56 TFEU precludes the application of any national rules which have the effect of making the provision of services between Member States more difficult than the provision of services purely within one Member State ( Commission v Denmark , paragraph 38).
43. In addition, according to the Court’s case-law, Article 56 TFEU precludes, inter alia, any national legislation which is liable to prohibit or further impede the activities of a provider of services established in another Member State where he lawfully provides similar services (see Case C‑522/04 Commission v Belgium  [2007] ECR I‑5701, paragraph 38).
49. According to well-established case-law, 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, that they are appropriate for attaining that objective and that they do not go beyond what is necessary to attain the objective pursued (see, inter alia, Case C-269/09 Commission v Spain  [2012] ECR I-0000, paragraph 62 and the case-law cited).
51. As regards that justification, it must first be stated that the Court has already held that the need to guarantee the effectiveness of fiscal supervision could justify a restriction on the fundamental freedoms (see, to that effect, inter alia, X and Passenheim-van Schoot , paragraph 45).
52. As regards the claim that it is not possible to have recourse to European Union instruments concerning mutual assistance which is guaranteed in particular by Directive 77/799, it must be stated that the existing machinery for mutual assistance between the authorities of the Member States is sufficient to enable a Member State to check the truthfulness of the returns made by taxpayers relating to their income earned in another Member State (see, to that effect, Case C‑371/10 National Grid Indus  [2011] ECR I-0000, paragraph 78, and Commission v Spain , paragraph 68).
53. It is however possible that the instrument for cooperation referred to above may not always function in an efficient and satisfactory manner in practice. However, the Member States should not be able to rely on the possible difficulties in obtaining the information required or on the shortcomings of cooperation between their tax authorities in order to justify a restriction of the fundamental freedoms secured by the Treaty (see, to that effect, Case C‑334/02 Commission v France [2004] ECR I‑2229, paragraph 33, and Commission v Spain , paragraph 72).
54. There is no reason why the tax authorities concerned should not request from the taxpayer the evidence that they consider they need to effect a correct assessment of the taxes concerned and, where appropriate, refuse the exemption applied for if that evidence is not supplied (see, inter alia, Case C‑451/05 ELISA  [2007] ECR I‑8251, paragraph 95 and the case-law cited).
61. As regards the risk of double exemption, and therefore, implicitly, the justification for the legislation in question by the objectives of preventing tax evasion and avoidance, it should be recalled that they are legitimate objectives recognised by the Court of Justice (see to that effect, inter alia, Case C‑20/09 Commission v Portugal  [2011] ECR I‑2637, paragraph 60 and the case-law cited).
64. In accordance with well‑established case-law, the prevention of tax evasion and avoidance can be accepted as justification only if the legislation is aimed at wholly artificial arrangements the objective of which is to circumvent the tax laws, which precludes any general presumption of tax evasion. Consequently, a general presumption of tax avoidance or tax evasion cannot justify a fiscal measure which compromises the objectives of the Treaty (see, to that effect, Case C‑72/09 Établissements Rimbaud  [2010] ECR I‑10659, paragraph 34 and the case-law cited). In the present case, the contested national legislation not only prevents tax avoidance and evasion, but also the legitimate exercise of the freedom to provide services where taxpayers prove that their objective is not one of tax evasion.
71. In that regard, it must be observed that that provision of the EEA Agreement is similar to the provision laid down in Article 56 TFEU, so that the considerations relating to that article set out in paragraphs 40 to 69 of this judgment apply, in principle, also to the corresponding article of the EEA Agreement.
74. Since the provisions of the Treaty and the EEA Agreement on freedom to provide services preclude the contested legislation, there is no need for a separate examination of that legislation in the light of Article 63 TFEU and Article 40 of the EEA Agreement concerning the free movement of capital (see, by analogy, Commission v Belgium , paragraph 79).