Maria Geurts and Dennis Vogten v Administratie van de BTW, registratie en domeinen and Belgische Staat.
Date: 2007-10-25
14. In order to assess the legislation at issue in the main proceedings from the point of view of fundamental freedoms, it must be noted that the situation of a Community national who, since the transfer of his residence, has been living in one Member State and holding the majority of the shares in companies established in another Member State, has fallen within the scope of Article 43 EC since that transfer (see, to that effect, Case C-470/04 N  [2006] ECR I-7409, paragraph 28).
15. In accordance with settled case-law, even though Article 43 EC is, according to its terms, aimed particularly at ensuring that foreign nationals are treated in the host Member State in the same way as nationals of that State, it also prohibits the Member State of origin from hindering the establishment in another Member State of one of its own nationals as well as of nationals of other Member States residing in its territory (see, to that effect, C‑251/98 Baars [2000] ECR I‑2787, paragraphs 28 and 29 and the case-law cited).
16. The legislation at issue in the main proceedings primarily affects freedom of establishment and falls, in accordance with the case-law of the Court, within the scope only of the Treaty provisions concerning that freedom. If, as submitted by the applicants in the main proceedings, it were to be accepted that such a national measure has restrictive effects on the free movement of capital, such effects would have to be seen as an unavoidable consequence of any restriction on freedom of establishment and do not justify an independent examination of that measure in the light of Articles 56 EC to 58 EC (see, to that effect, Case C-524/04 Test Claimants in the Thin Cap Group Litigation [2007] ECR I-0000, paragraphs 33 and 34, and Order in Case C-102/05 A and B [2007] ECR I-0000, paragraphs 26 and 27).
17. As the Court has already held, the tax consequences in respect of inheritance rights are among the considerations which a national of a Member State could reasonably take into account when deciding whether or not to make use of the freedom of movement provided for in the Treaty (Case C-364/01 Barbier [2003] ECR I‑15013, paragraph 75).
19. According to the case-law of the Court, legislation of a Member State which provides for a difference in treatment between taxpayers on the basis of the place where the company of which those taxpayers are shareholders has its seat is in principle contrary to Article 43 EC (see, to that effect, Baars , paragraphs 30 and 31). The same is true of legislation of a Member State which provides for a difference in treatment between taxpayers on the basis of the place where the company owned by those taxpayers employs a certain number of workers for a certain period of time.
20. It follows from the case-law of the Court that, as far as concerns freedom of establishment, the rules regarding equal treatment prohibit not only overt discrimination by reason of nationality or, in the case of companies, their seat, but all covert forms of discrimination which, by the application of other criteria of differentiation, lead in fact to the same result (Case C-156/98 Germany v Commission [2000] ECR I‑6857, paragraph 83 and the case-law cited).
24. Such treatment is permissible only if it pursues a legitimate objective compatible with the Treaty or is justified by overriding reasons in the public interest. It is further necessary, in such a case, that its application be appropriate to ensuring the attainment of the objective thus pursued and not go beyond what is necessary to attain it (see, in particular, Case C-446/03 Marks & Spencer  [2005] ECR I‑10837, paragraph 35; Case C-196/04 Cadbury Schweppes and Cadbury Schweppes Overseas  [2006] ECR I-7995, paragraph 47; and Case C-347/04 Rewe Zentralfinanz [2007] ECR I-0000, paragraph 37).
26. It is conceivable that such considerations, in particular those connected with the survival of small and medium‑sized undertakings and the maintenance of employment in them, may, under certain circumstances and conditions, be acceptable justifications for national legislation providing for a tax benefit for natural or legal persons.
27. As regards the considerations put forward by the Belgian Government, it should be noted that the latter has not been able to show the need to limit the exemption at issue to ‘family’ undertakings which maintain a given number of jobs in the territory of the Member State concerned. In the present case, in relation to the objective of preventing inheritance tax from jeopardising the continuation of family undertakings, and therefore the jobs which they bring, undertakings having their seat in another Member State are in a situation comparable to that of undertakings established in the first Member State.
28. Further, as for the Belgian Government’s argument regarding the need to maintain the effectiveness of fiscal supervision on account of the fact that Council Directive 77/799/EEC of 19 December 1977 concerning mutual assistance by the competent authorities of the Member States in the field of direct taxation (OJ 1977 L 336, p. 15) does not apply to inheritance tax, it suffices to point out that that difficulty cannot justify the categorical refusal to grant the tax benefits in question since the tax authorities could request the taxpayers concerned to provide themselves the evidence which the authorities consider necessary to be fully satisfied that those benefits are granted only where the jobs in question fulfil the criteria set out under national law (see, to that effect, Case C-451/05 Elisa [2007] ECR I-0000, paragraph 98).