Vorarlberger Landes- und Hypothekenbank AG v Finanzamt Feldkirch.
Date: 2018-11-22
14


Furthermore, as regards the enforcement of the rules on State aid, the referring court notes that it follows, inter alia, from the judgment of 6 October 2015, Finanzamt Linz (C‑66/14, EU:C:2015:661, paragraph 21), that those liable to pay a tax cannot rely on the argument that a fiscal measure enjoyed by other businesses constitutes State aid in order to avoid payment of that tax. It therefore takes the view that there is no need to refer any questions for a preliminary ruling in that regard.
20


As the question referred for a preliminary ruling concerns both Article 56 TFEU and Article 63 TFEU, it is necessary to establish, as a preliminary point, whether, and if so to what extent, national legislation such as that at issue in the main proceedings is liable to affect the exercise of the freedom to provide services and the free movement of capital (judgment of 21 June 2018, Fidelity Funds and Others, C‑480/16, EU:C:2018:480, paragraph 32).
23


In that regard, the Court has previously held that banking transactions, such as granting credit on a commercial basis, concern, in principle, both the freedom to provide services within the meaning of Article 56 TFEU et seq. and the free movement of capital within the meaning of Article 63 TFEU et seq. (judgment of 3 October 2006, Fidium Finanz, C‑452/04, EU:C:2006:631, paragraph 43).
24


In addition, it should be observed that, when 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 (judgment of 26 May 2016, NN (L) International, C‑48/15, EU:C:2016:356, paragraph 39).
27


It should be noted that, regardless of whether the stability charge and the special contribution for that charge constitute direct or indirect taxation, those taxes have not been harmonised within the European Union and therefore fall within the competence of the Member States, which, according to settled case-law, must exercise that competence consistently with EU law (judgment of 1 December 2011, Commission v Hungary, C‑253/09, EU:C:2011:795, paragraph 42).
28


Article 56 TFEU precludes the application of any national rules which have the effect of making the provision of services between Member States more difficult than the provision of services purely within a Member State. 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 (judgment of 25 July 2018, TTL, C‑553/16, EU:C:2018:604, paragraph 45 and the case-law cited).
29


Restrictions on the freedom to provide services are national measures which prohibit, impede or render less attractive the exercise of that freedom (judgment of 25 July 2018, TTL, C‑553/16, EU:C:2018:604, paragraph 46 and the case-law cited).
30


The freedom to provide services conferred by Article 56 TFEU on Member State nationals also includes ‘passive’ freedom to provide services, namely the freedom for recipients of services to go to another Member State in order to receive a service there, without being hindered by restrictions (judgment of 9 March 2017, Piringer, C‑342/15, EU:C:2017:196, paragraph 35).
32


In addition, the mere fact that those charges are liable to increase banking transaction costs cannot constitute an impediment to the freedom to provide services. As has been held by the Court, measures, the only effect of which is to create additional costs in respect of the service in question and which affect in the same way the provision of services between Member States and the provision of services within one Member State, do not fall within the scope of Article 56 TFEU (judgments of 8 September 2005, MobistarandBelgacom Mobile, C‑544/03 and C‑545/03, EU:C:2005:518, paragraph 31, and of 11 June 2015, Berlington Hungary and Others, C‑98/14, EU:C:2015:386, paragraph 36).
34


In that regard, the Court has previously held that the scope of the freedom to provide services must be distinguished from the scope of the freedom of establishment. To that end, it is necessary to establish whether or not the economic operator is established in the Member State in which it offers the services in question. Where that operator is established in the Member State in which it offers the service, it falls within the scope of the principle of freedom of establishment, as defined in Article 49 TFEU. On the other hand, where the economic operator is not established in the Member State of destination, it is a cross-border service provider covered by the principle of freedom to provide services (see, to that effect, judgments of 11 December 2003, Schnitzer, C‑215/01, EU:C:2003:662, paragraphs 28 and 29, and of 10 May 2012, Duomo Gpa and Others, C‑357/10 to C‑359/10, EU:C:2012:283, paragraph 30).
35


The concept of ‘establishment’ within the meaning of the FEU Treaty provisions on freedom of establishment involves the actual pursuit of an economic activity through a fixed establishment in the host Member State for an indefinite period. Consequently, it presupposes actual establishment of the company concerned in that Member State and the pursuit of genuine economic activity there (judgment of 12 September 2006, Cadbury Schweppes and Cadbury Schweppes Overseas, C‑196/04, EU:C:2006:544, paragraph 54).
36


In contrast, where the provider of services moves to a Member State other than the Member State in which it is established, the provisions of the Treaty chapter on services, in particular the third paragraph of Article 57 TFEU, envisage that he is to pursue his activity there on a temporary basis (judgments of 30 November 1995, Gebhard, C‑55/94, EU:C:1995:411, paragraph 26, and of 11 December 2003, Schnitzer, C‑215/01, EU:C:2003:662, paragraph 27).
41


In addition, in proceedings under Article 267 TFEU, only the court making the reference may define the factual context in which the questions which it asks arise or, at very least, explain the factual assumptions on which the questions are based (judgment of 10 July 2018, Jehovan todistajat, C‑25/17, EU:C:2018:551, paragraph 28).