Vlaamse Gewest and Vlaamse Gewest v Johannes Huijbrechts.
Date: 2018-11-22
16


According to settled case-law, the tax treatment of successions falls within the TFEU provisions on the movement of capital, except in cases where their constituent elements are confined within a single Member State (judgments of 17 January 2008, Jäger, C‑256/06, EU:C:2008:20, paragraph 25, and of 27 January 2009, Persche, C‑318/07, EU:C:2009:33, paragraph 27).
19


With reference to inheritance tax, it follows from settled case-law that the fact that the grant of tax advantages is made subject to the condition that the property inherited is situated in national territory constitutes a restriction of the free movement of capital prohibited in principle by Article 63(1) TFEU (judgments of 17 January 2008, Jäger, C‑256/06, EU:C:2008:20, paragraph 35, and of 18 December 2014, Q, C‑133/13, EU:C:2014:2460, paragraph 20).
21


A distinction must therefore be drawn between unequal treatment permitted under Article 65(1)(a) TFEU and arbitrary discrimination prohibited under Article 65(3) TFEU. According to the case-law, in order for national tax legislation such as that at issue in the main proceedings which, for the purposes of calculating inheritance tax, distinguishes between assets situated in another Member State and those situated in the territory of a region of the Kingdom of Belgium to be 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 (judgment of 17 January 2008, Jäger, C‑256/06, EU:C:2008:20, paragraph 42) and must not go beyond what is necessary to achieve the objective pursued by the measure at issue (judgments of 14 September 2006, Centro di Musicologia Walter Stauffer, C‑386/04, EU:C:2006:568, paragraph 32; of 17 January 2008, Jäger, C‑256/06, EU:C:2008:20, paragraph 41; and of 27 January 2009, Persche, C‑318/07, EU:C:2009:33, paragraph 41).
22


To assess whether the different treatment concerns situations which are not objectively comparable, account must be taken of the object and content of the national provisions at issue in the main proceedings (judgment of 18 December 2014, Q, C‑133/13, EU:C:2014:2460, paragraph 22 and the case-law cited).
26


Effective protection and sustainable management of forest and woodland are typically a cross-border environmental issue entailing common responsibilities for the Member States (see, by analogy, judgments of 12 July 2007, Commission v Austria, C‑507/04, EU:C:2007:427, paragraph 87, and of 26 January 2012, Commission v Poland, C‑192/11, not published, EU:C:2012:44, paragraph 23).
28


Consequently, a taxpayer who inherits forest or woodland in the territory of a Member State bordering on the Flemish Region of the Kingdom of Belgium, which he can show to be the subject of sustainable management corresponding to requirements such as those laid down by Article 55 quater of the Code of Inheritance Tax, now Article 2.7.6.0.3 of the Flemish Code of Taxation, is, from the point of view of the tax exemption at issue in the main proceedings, in a comparable situation to a taxpayer who inherits forest or woodland which is the subject of a sustainable management plan in accordance with that provision and is situated in the territory of that region (see, by analogy, judgments of 14 September 2006, Centro di Musicologia Walter Stauffer, C‑386/04, EU:C:2006:568, paragraph 40, and of 27 January 2009, Persche, C‑318/07, EU:C:2009:33, paragraphs 48 to 50).
30


Such a restriction may nonetheless be accepted if it is justified by an overriding reason in the public interest and complies with the principle of proportionality, in that it must be appropriate for securing the attainment of the objective it pursues and must not go beyond what is necessary to attain it (judgment of 27 January 2009, Persche, C‑318/07, EU:C:2009:33, paragraph 52).
32


It should also be recalled that protection of the environment is one of the essential objectives of the European Union (judgment of 11 December 2008, Commission v Austria, C‑524/07, not published, EU:C:2008:717, paragraph 58 and the case-law cited).
36


It is true that the need to guarantee the effectiveness of fiscal supervision constitutes an overriding reason in the public interest capable of justifying a restriction of the exercise of the freedoms of movement guaranteed by the Treaty. However, such a restriction must comply with the principle of proportionality, in that it must be appropriate for ensuring the attainment of the objective pursued and must not go beyond what is necessary for attaining it (judgment of 27 January 2009, Persche, C‑318/07, EU:C:2009:33, paragraph 52).
37


In this respect, it is settled case-law that the existence of practical difficulties in determining whether the conditions for obtaining a tax advantage are satisfied cannot justify the categorical refusal to grant them. The competent tax authorities of a Member State can request the taxpayer concerned to provide the relevant documentation to enable them to verify compliance with the requirements concerning the sustainable management of woodland in the territory of another Member State, in order to assess whether the conditions for the application of the tax exemption in question are satisfied (see inter alia, by analogy, judgments of 14 September 2006, Centro di Musicologia Walter Stauffer, C‑386/04, EU:C:2006:568, paragraph 48; of 25 October 2007, Geurts and Vogten, C‑464/05, EU:C:2007:631, paragraph 28; of 17 January 2008, Jäger, C‑256/06, EU:C:2008:20, paragraphs 54 and 55; and of 27 January 2009, Persche, C‑318/07, EU:C:2009:33, paragraphs 53 to 55).
38


Thus national legislation such as that at issue in the main proceedings which categorically prevents the taxpayer from providing proof that inherited woodland is subject to a sustainable management plan, drawn up in accordance with the legislation of the Member State in which it is located and corresponding to identical requirements to those laid down in Article 55 quater of the Code of Inheritance Tax, cannot be justified on the ground of the effectiveness of fiscal supervision (see, to that effect, judgments of 10 March 2005, Laboratoires Fournier, C‑39/04, EU:C:2005:161, paragraph 25; of 14 September 2006, Centro di Musicologia Walter Stauffer, C‑386/04, EU:C:2006:568, paragraph 48; and of 27 January 2009, Persche, C‑318/07, EU:C:2009:33, paragraph 60).
40


In the event that the Member State in which the woodland is situated grants a tax advantage of the same kind as that at issue in the main proceedings, subject to equivalent conditions, in particular a management plan comparable to that laid down by the Belgian legislation, it cannot be excluded from the outset that the Member State of taxation may, in the framework of the mutual assistance established by EU law, be able to receive the information needed to verify that the conditions for granting and maintaining the tax advantage provided for in that legislation are satisfied (see inter alia, to that effect, judgment of 27 January 2009, Persche, C‑318/07, EU:C:2009:33, paragraph 68).
41


In any case, there is nothing to prevent the tax authorities concerned from refusing the exemption at issue in the main proceedings if the evidence they consider necessary for a correct determination of tax is not provided (see inter alia, to that effect, judgment of 27 January 2009, Persche, C‑318/07, EU:C:2009:33, paragraph 69 and the case-law cited).
42


As to the question raised by the Belgian Government in its written observations of whether that analysis applies also to woodland situated in the territory of a third country, it must be stated that not only is an answer to that question unnecessary for resolving the main proceedings, it is also legitimate, in any event, for a Member State to refuse to grant a tax advantage if, in particular because that non-member country is not under any international obligation to provide information, it proves impossible to obtain the necessary information from that country (judgments of 18 December 2007, A, C‑101/05, EU:C:2007:804, paragraph 63, and of 27 January 2009, Persche, C‑318/07, EU:C:2009:33, paragraph 70).