Sparkasse Allgäu v Finanzamt Kempten.
Date: 2016-04-14
18


As a preliminary point, it should be noted that Article 49 TFEU requires the elimination of restrictions on freedom of establishment. According to this provision, freedom of establishment for nationals of one Member State in the territory of another Member State includes the right to take up and pursue activities as self-employed persons and to set up and manage undertakings under the conditions laid down for its own nationals by the law of the Member State of establishment. The abolition of restrictions on freedom of establishment also applies to restrictions on the setting up of agencies, branches or subsidiaries by nationals of any Member State established in the territory of another Member State (see, inter alia, judgments in Commission v France, 270/83, EU:C:1986:37, paragraph 13; Royal Bank of Scotland, C‑311/97, EU:C:1999:216, paragraph 22; and CLT-UFA, C‑253/03, EU:C:2006:129, paragraph 13).
20


It is settled case-law that, even though, according to their wording, the provisions of the FEU Treaty on freedom of establishment are aimed at ensuring the benefit of national treatment in the host Member State, they also prohibit the Member State of origin from hindering the establishment in another Member State of one of its nationals or of a company incorporated in accordance with its legislation (judgment in Verder LabTec, C‑657/13, EU:C:2015:331, paragraph 33 and the case-law cited).
25


In the light of the information supplied by the referring court, it must be held that, in circumstances such as those at issue in the main proceedings, the adverse consequences which might arise from an obligation such as that laid down in Paragraph 33(1) of the ErbStG result from the exercise in parallel by two Member States of their powers (i) in regard to regulating the obligations of banks and other credit institutions towards their clients with regard to maintaining banking secrecy and (ii) of fiscal supervision (see, to that effect, judgments in Kerckhaert and Morres, C‑513/04, EU:C:2006:713, paragraph 20; Columbus Container Services, C‑298/05, EU:C:2007:754, paragraph 43; and CIBA, C‑96/08, EU:C:2010:185, paragraph 25).
29


It must therefore be held that, under EU law as it applied at the time of the facts in the main proceedings, and in the absence of any harmonising measure in relation to the exchange of information for the requirements of fiscal supervision, Member States were free to impose on national credit institutions an obligation concerning their branches operating abroad, such as that at issue in the main proceedings, with the objective of ensuring the effectiveness of fiscal supervision, on condition that the transactions carried out in those branches are not treated in a manner that is discriminatory in comparison with transactions carried out by their national branches (see, to that effect, judgment in Columbus Container Services, C‑298/05, EU:C:2007:754, paragraphs 51 and 53, and order in KBC Bank and Beleggen, Risicokapitaal, Beheer, C‑439/07 and C‑499/07, EU:C:2009:339, paragraph 80).
31


The mere fact that a notification obligation, such as that at issue in the main proceedings, is not prescribed by Austrian law cannot lead to the conclusion that the Federal Republic of Germany is precluded from imposing such an obligation. It follows from the Court’s case-law that freedom of establishment cannot be understood as meaning that a Member State is required to draw up its tax rules and, in particular, a notification obligation such as that at issue in the main proceedings on the basis of those in another Member State in order to ensure, in all circumstances, that any disparities arising from national rules are removed (see, to that effect, judgments in Columbus Container Services, C‑298/05, EU:C:2007:754, paragraph 51, and National Grid Indus, C‑371/10, EU:C:2011:785, paragraph 62).