Banco Bilbao Vizcaya Argentaria SA v Administración General del Estado.
Date: 2011-12-08
18. In that regard, the Court notes that it is settled case‑law that, 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, and Case C‑420/06 Jager [2008] ECR I‑1315, paragraph 46).
19. 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; and Case C‑513/03 van Hilten-van der Heijden  [2006] ECR I‑1957, paragraph 26).
20. Indeed, the Court has a duty to interpret all provisions of European Union law which national courts need in order to decide the actions pending before them, even if those provisions are not expressly indicated in the questions referred to the Court of Justice by those courts (see Case C‑304/00 Strawson and Gagg & Sons [2002] ECR I‑10737, paragraph 58, and Jager , paragraph 47).
24. In that regard, the Court notes that Directive 88/361 brought about complete liberalisation of capital movements and to that end Article 1(1) thereof, whose direct effect has been recognised by the Court, required the Member States to abolish all restrictions on such movements (see Case C‑364/01 Barbier  [2003] ECR I‑15013, paragraph 57, and the case‑law cited).
28. It must be recalled that, while direct taxation falls within the competence of the Member States, they must none the less exercise that competence consistently with European Union law (see Case C‑279/93 Schumacker [1995] ECR I‑225, paragraph 21; C‑80/94 Wielockx [1995] ECR I‑2493, paragraph 16; Case C‑35/98 Verkooijen [2000] ECR I‑4071, paragraph 32; and Barbier , paragraph 56).
29. It is for each Member State to organise, in compliance with European Union law, its system for taxing income from investment capital and, in that context, to define the basis of assessment and the tax rate which apply to the shareholder receiving them (see, by analogy, Case C‑128/08 Damseaux  [2009] ECR I‑6823, paragraph 25, and Joined Cases C‑436/08 and C‑437/08 Haribo Lakritzen Hans Riegel and Österreichische Salinen [2011] ECR I‑0000, paragraph 167, and the case‑law cited).
31. In the absence of any unifying or harmonising European Union measures, Member States retain the power to define, by treaty or unilaterally, the criteria for allocating their powers of taxation, particularly with a view to eliminating double taxation (Case C‑336/96 Gilly [1998] ECR I‑2793, paragraphs 24 and 30; Case C‑307/97 Saint-Gobain ZN [1999] ECR I‑6161, paragraph 57; Case C‑379/05 Amurta [2007] ECR I‑9569, paragraph 17; and Case C‑194/06 Orange European Smallcap Fund [2008] ECR I‑3747, paragraph 32). It is for the Member States to take the measures necessary to prevent situations of double taxation by applying, in particular, the criteria followed in international tax practice (see Case C‑513/04 Kerckhaert and Morres [2006] ECR I‑10967, paragraph 23).
38. However, the Court has already ruled that the disadvantages which could arise from the parallel exercise of tax competences by different Member States, to the extent that such an exercise is not discriminatory, do not constitute restrictions on the freedom of movement (see, to that effect, Kerckhaert and Morres , paragraphs 19, 20 and 24; Orange European Smallcap Fund , paragraphs 41, 42 and 47; and Damseaux , paragraph 27).
39. Accordingly, if the Member States are not obliged to adapt their own tax systems to the different systems of tax of the other Member States in order, inter alia, to eliminate double taxation (see, Case C‑67/08 Block  [2009] ECR I‑883, paragraph 31), a fortiori , those States are not required to adapt their tax legislation to enable tax payers to benefit from a tax advantage granted by another Member State in the exercise of its powers in tax matters, so long as their rules are not discriminatory.
41. In that regard, it is settled case‑law that discrimination can arise not only through the application of different rules to comparable situations, but also through the application of the same rule to different situations (see Schumacker , paragraph 30; Case C‑311/97 Royal Bank of Scotland  [1999] ECR I‑2651, paragraph 26; and Kerckhaert and Morres , paragraph 19).
42. However, in respect of the tax legislation of his State of residence, the position of a taxable person receiving interest is not necessarily altered merely by the fact that he receives that interest from a company established in another Member State, which, in exercising its fiscal sovereignty, may tax that interest at source by way of income tax (see, to that effect, Kerckhaert and Morres , paragraph 19, and Case C‑298/05 Columbus Container Services  [2007] ECR I‑10451, paragraph 42).