Tankreederei I SA v Directeur de l’administration des contributions directes.
Date: 2010-12-22
14. In that regard, whilst it is true that direct taxation falls within their competence, the Member States must none the less exercise that competence consistently with EU law (see, inter alia, Case C‑72/09 Établissements Rimbaud  [2010] ECR I‑0000, paragraph 23).
15. The Court has repeatedly held that 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 a Member State (see, inter alia, Joined Cases C‑155/08 and C‑157/08 X and Passenheim-van Schoot  [2009] ECR I‑5093, paragraph 32). Restrictions on the freedom to provide services are national measures which prohibit, impede or render less attractive the exercise of that freedom (see, inter alia, Case C‑330/07 Jobra  [2008] ECR I-9099, paragraph 19).
16. Furthermore, the freedom to provide services may be relied on by an undertaking against the Member State in which it is established where the services are provided to recipients established in another Member State and, more generally, whenever a provider of services offers services in a Member State other than the one in which he is established (see, inter alia, Case C‑208/05 ITC  [2007] ECR I‑181, paragraph 56).
17. In the present case, it must be held that a national provision such as that at issue in the main proceedings – which applies a less favourable tax regime to investments used in the territory of other Member States, in which the undertaking concerned is not established, than to investments that are used in national territory – is likely, if not to discourage national undertakings from providing, in other Member States, services that require the use of capital goods situated in those other Member States, at least to make that provision of cross-border services less attractive or more difficult than the provision of services in national territory by means of capital goods situated in that territory (see, to that effect, Jobra , paragraph 24).
19. That restriction may be accepted only if it is justified by overriding reasons in the public interest. Even if that were so, application of that restriction would still have to be such as to ensure achievement of the aim pursued and not go beyond what is necessary for that purpose (see, to that effect, Case C‑150/04 Commission  v Denmark  [2007] ECR I‑1163, paragraph 46, and Case C-96/08 CIBA  [2010] ECR I‑0000, paragraph 45).
21. In any event, in circumstances such as those of the main proceedings, the restriction referred to cannot be justified by the need, which the Court has held to be lawful, for the balanced allocation of the power to impose taxes between Member States (see, inter alia, Case C‑446/03 Marks & Spencer  [2005] ECR I‑10837, paragraphs 45, 46 and 51).
22. It is sufficient, in that regard, to point out, as did Tankreederei and the Commission, that, according to the information provided by the national court, Tankreederei’s business activities relating to the refuelling services provided in the ports of Antwerp and Amsterdam by means of the vessels in respect of which the tax credit for investments is sought are exclusively taxable in Luxembourg. Consequently, the right of the Grand-Duchy of Luxembourg to exercise its taxing powers in relation to those activities would in no way be jeopardised if the condition referred to in paragraph 11 of this judgment did not exist (see, to that effect, Jobra , paragraphs 32 and 33).
23. The restriction in question cannot moreover be justified by the need to ensure the coherence of the national tax system, which was established by the Court as an overriding requirement relating to the public interest (See Case C‑204/90 Bachmann  [1992] ECR I‑249, paragraph 28, and Case C‑300/90 Commission  v Belgium  [1992] ECR I‑305, paragraph 21).
24. For such a justification to succeed, a direct link must be established between the tax advantage concerned and the offsetting of that advantage by a particular tax levy (see, inter alia, Case C‑347/04 Rewe Zentralfinanz  [2007] ECR I‑2647, paragraph 62 and the case-law cited).
25. As the Commission states, it is not apparent from the case-file submitted to the Court that there is a direct link, as regards the Luxembourg tax system, between, on the one hand, the grant to an undertaking providing services such as those at issue in the main proceedings of a tax credit for investments used for those purposes and, on the other hand, the financing of that tax advantage by means of the tax levied on the income made by the recipients of the services provided by means of those assets (see, to that effect, Jobra , paragraph 34 and the case-law cited).
26. It is therefore irrelevant, for the purposes of the grant of the tax credit at issue in the main proceedings, that the recipients of those services who are established in Luxembourg are subject to tax in that Member State and that those who are established in another Member State are not (see, to that effect, Case C‑251/98 Baars  [2000] ECR I‑2787, paragraph 40).
27. The need to prevent the reduction of national tax revenues – a reduction which, in the main proceedings, the grant of the tax credit at issue to Tankreederei would result in – is not an overriding reason in the public interest capable of justifying a restriction on a freedom instituted by the FEU Treaty (see, to that effect, Case C‑136/00 Danner  [2002] ECR I‑8147, paragraph 56, and Case C-318/07 Persche  [2009] ECR I‑359, paragraph 46).
28. As regards the need to prevent abuse, it is true that it is apparent from settled case-law that a restriction on 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, inter alia, Jobra , paragraph 35 and the case-law cited).
29. However, the national provision at issue in the main proceedings affects every undertaking which uses capital goods in the territory of a Member State other than the Grand-Duchy of Luxembourg, and does so even where nothing, as in the main proceedings, points towards the existence of such an artificial arrangement (see, to that effect, Jobra , paragraphs 36 to 38).
30. Lastly, as regards the considerations voiced by the French Government on the discretion which Member States have to make the grant of a tax advantage which seeks to meet the specific needs of its entire or of part of its population subject to the requirement of a certain degree of connection between the recipient of the advantage and the society of the Member State concerned, it must be acknowledged that it is true that the choice of interests of the general public which a Member State wishes to promote by granting tax advantages is a matter for its own discretion (see, to that effect, Case C‑386/04 Centro di Musicologia Walter Stauffer  [2006] ECR I‑8203, paragraph 39).
31. Furthermore, as regards the need for a connection between the recipient of a benefit and the society of the Member State concerned, the Court has already held that, with regard to benefits that are not covered by European Union law, Member States enjoy a wide margin of appreciation in deciding which criteria are to be used when assessing the degree of connection to society (see, to that effect, Case C‑103/08 Gottwald  [2009] ECR I‑9117, paragraphs 32 and 34).
35. In those circumstances, there is no need to examine whether the provisions of the FEU Treaty relating to the free movement of capital might also preclude such a national provision (see, to that effect, Jobra , paragraph 42).
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