Anton van Zantbeek VOF v Ministerraad.
Date: 2020-01-30
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In that regard, it is settled case-law of the Court that if a national measure concerns both the freedom to provide services and the free movement of capital, the Court will in principle examine the measure in dispute in relation to only one of those two freedoms if it appears, in the circumstances of the case, that one of them is entirely secondary in relation to the other and may be considered together with it (see, to that effect, judgments of 3 October 2006, Fidium Finanz, C‑452/04, EU:C:2006:631, paragraph 34; of 26 May 2016, NN (L)International, C‑48/15, EU:C:2016:356, paragraph 39; and of 8 June 2017, Van der Weegen and Others, C‑580/15, EU:C:2017:429, paragraph 25).
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In the second place, in accordance with the Court’s case-law, Article 56 TFEU requires the abolition of any restriction on the freedom to provide services imposed on the ground that the person providing a service is established in a Member State other than that in which the service is provided (judgments of 19 June 2014, Strojírny Prostějov and ACO Industries Tábor, C‑53/13 and C‑80/13, EU:C:2014:2011, paragraph 34, and of 22 November 2018, Vorarlberger Landes- und Hypothekenbank, C‑625/17, EU:C:2018:939, paragraph 28). Restrictions on the freedom to provide services are national measures which prohibit, impede or render less attractive the exercise of that freedom (see, to that effect, judgments of 19 June 2014, Strojírny Prostějov and ACO Industries Tábor, C‑53/13 and C‑80/13, EU:C:2014:2011, paragraph 35, and of 25 July 2018, TTL, C‑553/16, EU:C:2018:604, paragraph 46 and the case-law cited).
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According to settled case-law of the Court, Article 56 TFEU confers rights not only on the provider of services but also on the recipient of those services (judgments of 31 January 1984, Luisi and Carbone, 286/82 and 26/83, EU:C:1984:35, paragraph 10; of 18 October 2012, X, C‑498/10, EU:C:2012:635, paragraph 23; and of 19 June 2014, Strojírny Prostějov and ACO Industries Tábor, C‑53/13 and C‑80/13, EU:C:2014:2011, paragraph 26).
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In the third place, it should be recalled that, according to the Court’s case-law, such a restriction may be justified by overriding reasons in the public interest. Nevertheless, that restriction is applied in such a way as to ensure achievement of the aim pursued and not go beyond what is necessary for that purpose (see, to that effect, judgments of 7 September 2006, N, C‑470/04, EU:C:2006:525, paragraph 40; of 13 July 2016, Brisal and KBC Finance Ireland, C‑18/15, EU:C:2016:549, paragraph 29; and of 25 July 2018, TTL, C‑553/16, EU:C:2018:604, paragraph 52 and the case-law cited).
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As the Court has already held, these are overriding reasons in the public interest that may justify a restriction on the exercise of the freedom to provide services, as well as the need to ensure the effectiveness of tax collection and fiscal supervision (see to that effect, inter alia, judgment of 25 July 2018, TTL, C‑553/16, EU:C:2018:604, paragraphs 53 and 57 and the case-law cited), the latter aimed at combating tax fraud and evasion (see, to that effect, judgments of 5 July 2012, SIAT, C‑318/10, EU:C:2012:415, paragraph 44, and of 26 February 2019, X (Intermediate Companies established in third countries), C‑135/17, EU:C:2019:136, paragraph 74), and the fight against tax evasion (see, inter alia, judgment of 19 June 2014, Strojírny Prostějov and ACO Industries Tábor, C‑53/13 and C‑80/13, EU:C:2014:2011, paragraph 55 and the case-law cited).
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Next, with regard to whether that legislation is able to achieve the objectives pursued, it should be noted that making the issuer of an order using the services of a non-resident intermediary subject to the TOB is likely to ensure that the stock exchange transactions concerned will not escape taxation (see, by analogy, judgment of 18 October 2012, X, C‑498/10, EU:C:2012:635, point 39 and the case-law cited), by making fiscal supervision more effective and making it more difficult to circumvent that tax, the burden of which is borne by the issuer of an order.