Erika Waltraud Ilse Hollmann v Fazenda Pública.
Date: 2007-10-11
18. In that regard, it is appropriate to recall that, according to settled case‑law, even though it is true that it is not for the Court to rule on the compatibility of national rules with the provisions of Community law in proceedings brought under Article 234 EC since the interpretation of such rules is a matter for the national courts, the Court does have jurisdiction to supply the latter with all the guidance as to the interpretation of Community law necessary to enable them to rule on the compatibility of such rules with the provisions of Community law (see Joined Cases C‑338/04, C‑359/04 and C‑360/04 Placanica and Others  [2007] ECR I‑0000, paragraph 37, and Case C‑295/05 Asociación Nacional de Empresas Forestales  [2007] ECR I‑0000, paragraph 29 and the case‑law cited).
19. In addition, under equally settled case-law, in the context of the cooperation between the Court of Justice and the national courts provided for by Article 234 EC, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where questions submitted by national courts concern the interpretation of a provision of Community law, the Court of Justice is bound, in principle, to give a ruling (see, inter alia, Asociación Nacional de Empresas Forestales , paragraph 30, and Case C‑470/03 AGM‑COS.MET  [2007] ECR I‑0000, paragraph 44).
27. Consequently, in the light of the facts set out by the referring court, Mrs Hollmann cannot rely on Articles 18 EC, 39 EC and 43 EC in the present case (see, to that effect, Case C‑345/05 Commission  v Portugal [2006] ECR I‑10633, paragraph 15 and the case‑law cited).
28. It is apparent from the case‑law that Article 12 EC applies independently only to situations governed by Community law for which the Treaty lays down no specific rules of non-discrimination (see, inter alia, Joined Cases C‑397/98 and C‑410/98 Metallgesellscahft and Others  [2001] ECR I‑1727, paragraph 38, and Case C‑422/01 Skandia and Ramstedt  [2003] ECR I‑6817, paragraph 61).
29. The Treaty lays down in Article 56 EC, in particular, a specific rule of non‑discrimination in relation to the free movement of capital (Case C‑222/04 Cassa di Risparmio di Firenze  [2006] ECR I‑289, paragraph 99).
31. In that regard, it can be inferred from the case‑law that a transaction concerning the liquidation of an investment in real property, such as that at issue in the case in the main proceedings, constitutes a capital movement (see, to that effect, Case C‑222/97 Trummer and Mayer  [1999] ECR I‑1661, paragraph 24).
33. As a preliminary point, it should be observed that, according to settled case-law, although direct taxation falls within their competence, the Member States must none the less exercise that competence consistently with Community law (see, inter alia, Case C‑319/02 Manninen  [2004] ECR I‑7477, paragraph 19; Case C‑386/04 Centro di Musicologia Walter Stauffer [2006] ECR I‑8203, paragraph 15; and Case C‑157/05 Holböck  [2007] ECR I‑0000, paragraph 21).
45. According to the case-law, for a national fiscal provision such as that at issue in the main proceedings to be capable of being regarded as compatible with the provisions of the Treaty on the free movement of capital, the difference in treatment must concern situations which are not objectively comparable or be justified by overriding reasons in the public interest (see Manninen , paragraphs 28 and 29; Case C-512/03 Blanckaert  [2005] ECR I-7685, paragraph 42; and Case C‑265/04 Bouanich [2006] ECR I‑923, paragraph 38).
56. It is apparent from the case‑law that the need to maintain the coherence of a tax system can justify a restriction on the exercise of the fundamental freedoms guaranteed by the Treaty. However, for an argument based on such reasoning to succeed, a direct link must be established between the tax advantage concerned and the offsetting of that advantage by a particular tax levy (Case C‑471/04 Keller Holding  [2006] ECR I‑2107, paragraph 40, and Case C‑347/04 Rewe Zentralfinanz  [2007] ECR I‑0000, paragraph 62 and the case‑law cited).