Jobra Vermögensverwaltungs-Gesellschaft mbH v Finanzamt Amstetten Melk Scheibbs.
Date: 2008-12-04
17. In this context, it must be noted that it is not for the Court, in the context of a reference for a preliminary ruling, to give a ruling on the interpretation of provisions of national law or the definition of the factual context. The Court must take account, under the division of jurisdiction between the Community Courts and the national courts, of the factual and legislative context, as described in the order for reference, in which the questions put to it are set (see, in particular, Case C‑475/99 Ambulanz Glöckner  [2001] ECR I‑8089, paragraph 10; Case C‑136/03 Dörr and Ünal  [2005] ECR I‑4759, paragraph 46; and Case C-244/06 Dynamic Medien  [2008] ECR I-0000, paragraph 19).
19. The Court has consistently held that restrictions on the freedom of establishment and the freedom to provide services referred to in Articles 43 EC and 49 EC respectively are measures which prohibit, impede or render less attractive the exercise of such freedoms (see, to that effect Case C‑439/99 Commission v Italy  [2002] ECR I‑305, paragraph 22; Case C‑451/03 Servizi Ausiliari Dottori Commercialisti  [2006] ECR I‑2941, paragraph 31; and Case C‑248/06 Commission v Spain  [2008] ECR I‑0000, paragraph 21).
22. In the present case, Jobra leases lorries to Braunshofer. The leasing of vehicles is a service within the meaning of Article 50 EC (see, in particular, Case C-451/99 Cura Anlagen  [2002] ECR I-3193, paragraph 18). Braunshofer uses those lorries for the purpose of carrying out its transport business.
24. It must be held that national legislation such as that at issue in the main proceedings – which applies a less favourable tax regime to investments in assets which, once they have been hired out for remuneration, are used in other Member States, than to investments in such assets that are used domestically – is likely to discourage undertakings that would be eligible for that tax advantage from providing rental services to economic operators that carry out their activities in other Member States.
27. It is clear from the case-law of the Court that a restriction on the freedom to provide services is warranted only if it pursues a legitimate objective compatible with the EC Treaty and is justified by overriding reasons of public interest; if that is the case, it must be suitable for securing the attainment of the objective which it pursues and not go beyond what is necessary in order to attain it (see, in particular, Case C‑398/95 SETTG  [1997] ECR I‑3091, paragraph 21, and Case C‑341/05 Laval un Partneri  [2007] ECR I‑11767, paragraph 101).
32. As regards the first ground of justification put forward by the Austrian and German Governments, it is true that the Court has acknowledged in its case-law that, in conjunction with other grounds of justification, the balanced allocation of the power to impose taxes between the Member States could be considered to be a legitimate requirement (see, in particular, Case C‑446/03 Marks & Spencer  [2005] ECR I‑10837, paragraphs 45, 46 and 51; Case C‑347/04 Rewe Zentralfinanz  [2007] ECR I‑2647, paragraph 41; Case C‑231/05 Oy AA  [2007] ECR I‑6373, paragraph 51; and Case C‑414/06, Lidl Belgium  [2008] ECR I‑0000, paragraph 42). However, that case-law does not apply in circumstances such as those of the case in the main proceedings.
33. In this respect, there is no need to analyse all the conditions for the application of the above case-law and it is sufficient to note that, in the present case, the rental income generated by hiring out the tangible assets for which Jubra claims the investment premium is taxable in Austria. Therefore, it cannot be claimed that, without the legislation at issue in the main proceedings, the right of the Republic of Austria to exercise its taxing powers in relation to activities carried on in its territory would be jeopardised (see, also, Marks & Spencer , paragraph 46, and Rewe Zentralfinanz , paragraph 42).
34. In so far as the arguments of the interested parties who have submitted observations to the Court refer, more generally, to the need to safeguard the coherence of the national tax system, it must be noted that, as regards the tax system, there is no direct link between, on the one hand, the investment premium granted to the lessor for tangible goods it has acquired and, on the other hand, subsequent taxation of the income of the lessee, generated through use of those assets hired out to it for remuneration (see, by analogy, Case C‑39/04 Laboratoires Fournier  [2005] ECR I‑2057, paragraphs 20 and 21).
35. As regards the justification alleging that there is a need to prevent abuse, it must be held that a national measure restricting the freedom to provide services can be justified where it specifically targets wholly artificial arrangements which do not reflect economic reality and whose only purpose is to obtain a tax advantage (see, to that effect, Case C‑196/04 Cadbury Schweppes and Cadbury Schweppes Overseas  [2006] ECR I‑7995, paragraph 51 and 55, and Case C‑524/04 Test Claimants in the Thin Cap Group Litigation  [2007] ECR I‑2107, paragraph 74).
36. In the present case, it cannot be claimed that it actually constitutes abuse for an undertaking that can claim the investment premium to hire out assets for remuneration to another undertaking which uses them primarily in other Member States.
37. Such hiring out cannot be the basis of a general presumption of abusive practice and justify a measure which compromises the exercise of a fundamental freedom guaranteed by the Treaty (see, to that effect, Test Claimants in the Thin Cap Group Litigation , paragraph 73, and Case C‑105/07 Lammers & Van Cleef  [2008] ECR I‑0000, paragraph 27).
38. In that context, it must be noted that the legislation at issue in the main proceedings affects every lessor eligible for the investment premium which hires out assets for remuneration to undertakings carrying out cross-border activities, and does so even where nothing points towards the existence of such an artificial arrangement. Furthermore, the legislation does not allow lessors to adduce evidence that no abuse is taking place.
42. Given that the Treaty provisions on freedom to provide services preclude legislation such as that at issue in the main proceedings, there is no need to examine whether the Treaty provisions on freedom of establishment might do the same.
Costs