European Commission v Kingdom of Spain.
Date: 2014-12-11
14. It is clear from Article 38(1)(c) of the Rules of Procedure, in the version applicable on the date the action was brought, and from the case-law relating to that provision that every application initiating proceedings must state the subject-matter of the dispute and a summary of the pleas in law, and that that statement must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the application. It is, therefore, necessary for the essential points of fact and of law on which a case is based to be indicated coherently and intelligibly in the application itself and for the form of order sought to be set out unambiguously so that the Court does not rule ultra petita  or indeed fail to rule on a complaint (see judgment in Commission  v Spain , C‑360/11, EU:C:2013:17, paragraph 26 and the case-law cited).
37. It must be noted that the services offered by pension funds and insurance companies in relation to occupational pension schemes are services within the meaning of Article 57 TFEU. They are services normally provided for remuneration, the essential characteristic of which lies in the fact that it constitutes consideration for the services in question (see, by analogy, judgment in Commission  v Belgium , C‑296/12, EU:C:2014:24, paragraph 28).
38. It must also be stated that, from the perspective of the single market, and in order to enable the objectives of that market to be attained, Article 56 TFEU precludes the application of any national rules that have the effect of making the provision of services, within the meaning of Article 57 TFEU, between Member States more difficult than the purely internal provision of services within one Member State (see judgment in Commission  v Belgium , EU:C:2014:24, paragraph 29 and the case-law cited).
42. However, according to the Court’s well-established case-law, national measures, capable of hindering the exercise of fundamental freedoms guaranteed by the FEU Treaty or of making it less attractive, may nonetheless be allowed provided that they pursue a legitimate objective in the public interest, are appropriate to ensuring the attainment of that objective, and do not go beyond what is necessary to attain the objective pursued (see, inter alia, judgment in van Caster , C‑326/12, EU:C:2014:2269, paragraph 39 and the case-law cited).
43. It is for the national authorities, where they adopt a measure derogating from a principle affirmed in EU law, to show in each individual case that that condition is satisfied. The reasons which may be invoked by a Member State by way of justification must be accompanied by an analysis of the appropriateness and proportionality of the measure adopted by that State and by specific evidence substantiating its arguments (see judgment in Commission  v Belgium , EU:C:2014:24, paragraph 33 and the case-law cited).
45. In that regard, the Court has held on numerous occasions that the prevention of tax avoidance and the need for effective fiscal supervision may be relied on to justify restrictions of the exercise of the fundamental freedoms guaranteed by the Treaty (see judgment in Strojírny Prostějov and ACO Industries Tábor , C‑53/13 and C‑80/13, EU:C:2014:2011, paragraph 55 and the case-law cited).
46. Similarly, the need to ensure the effective collection of income tax, relied on by the French Republic in its statement in intervention, constitutes an overriding reason in the general interest capable of justifying a restriction of the freedom to provide services (see judgment in X , EU:C:2012:635, paragraph 39).
49. In the first place, so far as concerns the obligation to disclose information relating to tax due and the collection of that tax for the purposes of effective fiscal supervision and the prevention of tax evasion, it must be observed, on the one hand, that Article 1(1) of Directive 77/799 provides for the exchange between the authorities in Member States of any information that may enable them to effect a correct assessment of, inter alia, taxes on income (see, by analogy, judgment in Commission  v Belgium , EU:C:2007:405, paragraph 52).
50. On the other hand, as regards the collection, in particular, of income tax, the Court has previously held that the cooperation mechanisms existing at EU level between the authorities of the Member States, such as those provided for under Directive 2008/55, are sufficient to enable the Member State concerned to recover the tax in another Member State (see, to that effect, judgment in Commission  v Spain , C‑269/09, EU:C:2012:439, paragraph 68 and the case-law cited).
54. As far as the obligations referred to in paragraph 52 above are concerned, the Court held, in paragraphs 53 to 55 of the judgment in Commission  v Belgium  (EU:C:2007:405), that, as regards the payment of an annual tax on insurance contracts concluded with an insurer which is not established in Belgium, it follows from the fact that the insured is personally liable for that tax under national law that Belgian law contains measures capable of fulfilling the objective of ensuring payment of the tax that are less prejudicial to the freedom to provide services than the obligation to appoint a representative residing in Belgium.
58. However, as the Commission observes, national legislation giving pension funds established in Member States other than the Kingdom of Spain and offering occupational pension schemes in that Member State and insurance companies operating in Spain under the freedom to provide services the choice of appointing a tax representative or carrying out the tasks themselves, in accordance with the solution which they consider to be the most advantageous from the economic point of view, would be less prejudicial to the freedom to provide services than the general obligation to appoint such a representative imposed by the national legislation at issue (see, by analogy, judgments in Commission  v Portugal , C‑267/09, EU:C:2011:273, paragraph 47, and National Grid Indus , C‑371/10, EU:C:2011:785, paragraphs 69 to 73).
60. In that regard, it must be noted that whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in the Member State at the end of the period laid down in the reasoned opinion, and that the Court may not take account of any subsequent changes (see judgment in Commission v Belgium , C‑421/12, EU:C:2014:2064, paragraph 45 and the case-law cited).
61. Furthermore, the mere assertion that the residence condition is the best way of ensuring that the tax obligations incumbent on the tax representative are performed effectively is irrelevant. It is true that the supervision of such a representative by the tax authorities of a Member State may prove to be more difficult where that representative is in another Member State. However, it is clear from the case-law of the Court that administrative difficulties do not constitute a ground that can justify a restriction on a fundamental freedom guaranteed by EU law (see, to that effect, judgments in Commission  v France , C‑334/02, EU:C:2004:129, paragraph 29; Papillon , C‑418/07, EU:C:2008:659, paragraph 54; and van Caster , EU:C:2014:2269, paragraph 56).
66. It should be noted that Article 36 of the EEA Agreement is similar to Article 56 TFEU. Therefore, the restriction of the freedom to provide services found in paragraph 40 above must, in principle, be regarded as contrary to Article 36 too.
68. However, the framework of cooperation between the competent authorities of the Member States, established by Directives 77/799 and 2008/55, does not exist between those authorities and the competent authorities of a non-Member State, where that non-Member State has not entered into any undertaking of mutual assistance (see judgment in Commission  v Spain , EU:C:2012:439, paragraph 96).
69. In that regard, the Kingdom of Spain expressly states that it has not concluded any agreement on the exchange of information with the Principality of Liechtenstein. Given that the Commission has not alleged that there are any bilateral agreements on mutual assistance in tax matters between the defendant Member State and the States party to the EEA Agreement which are non-EU members, it has not established the existence of mechanisms for the exchange of information and for cooperation sufficient to enable the Kingdom of Spain to obtain information on the taxes due and the collection of those taxes (see, by analogy, judgments in Commission  v Portugal , EU:C:2011:273, paragraph 56, and Commission  v Spain , EU:C:2012:439, paragraph 98).