Frédéric Jahin v Ministre de l'Économie et des Finances and Ministre des Affaires sociales et de la Santé.
Date: 2018-01-18
22


With regard to the material scope of Article 63 TFEU, while the FEU Treaty does not define the concept of ‘movement of capital’, it is apparent from settled case-law of the Court that such movement within the meaning of that article includes investments in property within the territory of a Member State by non-residents (see, to that effect, judgments of 11 January 2001, Stefan, C‑464/98, EU:C:2001:9, paragraph 5; of 5 March 2002, Reisch and Others, C‑515/99, C‑519/99 to C‑524/99 and C‑526/99 to C‑540/99, EU:C:2002:135, paragraph 30; and of 8 September 2005, Blanckaert, C‑512/03, EU:C:2005:516, paragraph 35).
25


It follows from settled case-law of the Court that the measures prohibited by Article 63(1) TFEU, as restrictions on the movement of capital, include those that are such as to discourage non-residents from making investments in a Member State or to discourage that Member State’s residents from doing so in other States (judgments of 23 February 2006, van Hilten-van der Heijden, C‑513/03, EU:C:2006:131, paragraph 44; of 26 May 2016, NN (L) International, C‑48/15, EU:C:2016:356, paragraph 44, and of 2 June 2016, Pensioenfonds Metaal en Techniek, C‑252/14, EU:C:2016:402, paragraph 27).
32


It is apparent from settled case-law of the Court that that provision, in so far as it is a derogation from the fundamental principle of the free movement of capital, must be interpreted strictly. Accordingly, it cannot be interpreted as meaning that all tax legislation which draws a distinction between taxpayers on the basis of their place of residence is automatically compatible with the Treaty (judgments of 17 October 2013, Welte, C‑181/12, EU:C:2013:662, paragraph 42, and of 7 November 2013, K, C‑322/11, EU:C:2013:716, paragraph 34).
33


The derogation provided for in Article 65(1) TFEU is itself limited by Article 65(3) TFEU, which provides that the national provisions referred to in Article 65(1) TFEU ‘shall not constitute a means of arbitrary discrimination or a disguised restriction on the free movement of capital and payments as defined in Article 63’ (judgment of 17 October 2013, Welte, C‑181/12, EU:C:2013:662, paragraph 43).
34


A distinction must therefore be drawn between unequal treatment which is permitted under Article 65(1) TFEU and arbitrary discrimination which is prohibited by reason of Article 65(3) TFEU. In that respect, it follows from settled case-law of the Court that, in order for a national provision, such as that at issue in the main proceedings, to be capable of being regarded as compatible with the Treaty provisions 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 general interest (judgments of 6 June 2000, Verkooijen, C‑35/98, EU:C:2000:294, paragraph 43; of 7 September 2004, Manninen, C‑319/02, EU:C:2004:484, paragraphs 28 and 29; and of 8 September 2005, Blanckaert, C‑512/03, EU:C:2005:516, paragraph 42).
37


Nevertheless, in so far as natural persons not affiliated to a social security scheme of a Member State are, more often than not, not resident in that Member State, such a criterion in fact makes a distinction between natural taxable persons on the basis of their residence (see, to that effect, judgment of 8 September 2005, Blanckaert, C‑512/03, EU:C:2005:516, paragraph 38).
38


It is therefore necessary to ascertain whether an EU national affiliated to a social security scheme of another Member State is, having regard to the objective, the purpose and the content of the legislation of that Member State, in a situation comparable to that of a national of that Member State, but who resides in a third country other than an EEA Member State or the Swiss Confederation, and is affiliated to a social security scheme in that third country (see, to that effect, judgment of 2 June 2016, Pensioenfonds Metaal en Techniek, C‑252/14, EU:C:2016:402, paragraph 48).
40


In accordance with the principle that the legislation of a single Member State only is to apply in matters of social security, as laid down by Article 11 of Regulation No 883/2004, a Member State is not allowed, in respect of EU nationals affiliated to a social security scheme of another Member State, to collect levies, such as those at issue in the main proceedings, which, although categorised as a tax under national legislation, have a direct and sufficiently relevant link to the legislation governing the branches of social security listed in Article 3(1) of Regulation No 883/2004 and are specifically allocated to the funding of the social security scheme of the first Member State (see, to that effect, judgment of 26 February 2015, de Ruyter, C‑623/13, EU:C:2015:123, paragraphs 23, 24, 26 and 39).
41


That principle that the legislation of a single Member State applies in matters of social security is designed, as regards EU nationals who move within the European Union, to avoid the complications which may ensue from the simultaneous application of a number of national legislative systems and to eliminate the unequal treatment which would be the consequence of a partial or total overlapping of the applicable legislation (see, to that effect, judgment of 26 February 2015, de Ruyter, C‑623/13, EU:C:2015:123, paragraph 37 and the case-law cited).
46


However, since the FEU Treaty does not contain any provision extending the free movement of workers to persons who migrate to a third country, it is important to ensure that the interpretation of Article 63(1) TFEU as regards relations with third countries, other than the EEA Member States or the Swiss Confederation, does not enable persons who do not come within the territorial scope of the free movement of workers to profit from that freedom (see, to that effect, judgment of 13 November 2012, Test Claimants in the FII Group Litigation, C‑35/11, EU:C:2012:707, paragraph 100).