Emiliano Zanotti v Agenzia delle Entrate - Ufficio Roma 2.
Date: 2010-05-20
15. According to settled case-law, questions on the interpretation of Community law referred by a national court in the factual and legislative context which that court is responsible for defining, and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. The Court may refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of Community law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (Joined Cases C-222/05 to C-225/05 van der Weerd and Others  [2007] ECR I-4233, paragraph 22 and case-law cited).
24. It should be noted, first, that Article 18 EC, which lays down generally the right for every citizen of the Union to move and reside freely within the territory of the Member States, finds specific expression in the provisions guaranteeing the freedom to provide services. If, therefore, the case in the main proceedings falls under Article 49 EC, it will not be necessary for the Court to rule on the interpretation of Article 18 EC (see, inter alia, Case C-92/01 Stylianakis  [2003] ECR I-1291, paragraph 18, and Case C-76/05 Schwarz and Gootjes-Schwarz  [2007] ECR I-6849, paragraph 34).
26. In that regard, it should first be noted that, whilst the third paragraph of Article 50 EC refers only to the active provision of services, where the provider moves to the beneficiary of the services, it is apparent from well-established case‑law that the freedom to provide services includes the freedom of the persons for whom the services are intended to go to another Member State, where the provider is, in order to enjoy the services there (Joined Cases 286/82 and 26/83 Luisi and Carbone  [1984] ECR 377, paragraphs 10 and 16).
30. The Court has already held that, for the purposes of the first paragraph of Article 50 EC, the essential characteristic of remuneration lies in the fact that it constitutes consideration for the service in question (see, inter alia, Case 263/86 Humbel and Edel  [1988] ECR 5365, paragraph 17; Case C-157/99 Smits and Peerbooms  [2001] ECR I-5473, paragraph 58; and Schwarz and Gootjes-Schwarz , paragraph 38).
31. The Court has thus excluded from the definition of services within the meaning of Article 50 EC courses offered by certain establishments forming part of a system of public education financed, entirely or mainly, by public funds. The Court has made clear that, by establishing and maintaining such a system of public education, funded as a general rule from the public purse and not by pupils or their parents, the State was not seeking to engage in gainful activity, but was fulfilling its duties towards its own population in the social, cultural and educational fields (see, to that effect, Humbel and Edel , paragraphs 17 and 18, and Case C-109/92 Wirth  [1993] ECR I‑6447, paragraphs 15 and 16).
32. However, the Court has held that courses offered by educational establishments essentially financed by private funds, in particular by students and their parents, constitute services within the meaning of Article 50 EC, since the aim of those establishments is to offer a service for remuneration ( Wirth , paragraph 17, and Schwarz and Gootjes‑Schwarz , paragraph 40).
41. Such legislation would have the effect of deterring taxpayers resident in Italy from attending university courses at establishments established in another Member State. Furthermore, it would also hinder the offering of education by private educational establishments established in other Member States to taxpayers resident in Italy (see, to that effect, Schwarz and Gootjes-Schwarz , paragraph 66, and Case C‑318/05 Commission  v Germany  [2007] ECR I-6957, paragraph 40).
42. Such legislation would constitute an obstacle to the freedom to provide services guaranteed by Article 49 EC. That provision 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 (see, inter alia, Smits and Peerbooms , paragraph 61, and Schwarz and Gootjes‑Schwarz , paragraph 67 and case-law cited).
54. The Court has already held that, in order to avoid an excessive financial burden it is legitimate for a Member State to limit the amount deductible in respect of tuition fees to a given level, corresponding to the tax relief granted by that Member State, taking account of certain values of its own, for attendance at educational establishments situated in its territory (see Schwarz and Gootjes‑Schwarz , paragraph 80).
68. The status of citizen of the European Union is destined to be the fundamental status of nationals of the Member States, enabling those among such nationals who find themselves in the same situation to enjoy the same treatment in law within the area of application ratione materiae  of the Treaty irrespective of their nationality, subject to such exceptions as are expressly provided for in that regard (see, in particular, Case C‑184/99 Grzelczyk  [2001] ECR I‑6193, paragraph 31, and Schwarz and Grootjes-Schwarz , paragraph 86).
69. Situations falling within the scope of Community law include those involving the exercise of the fundamental freedoms guaranteed by the Treaty, in particular those involving the freedom to move and reside within the territory of the Member States, as conferred by Article 18 EC (see, in particular, Grzelczyk , paragraph 33, and Schwarz and Gootjes‑Schwarz , paragraph 87).
70. Inasmuch as a citizen of the Union must be granted in all Member States the same treatment in law as that accorded to nationals of those Member States who find themselves in the same situation, it would be incompatible with the right to freedom of movement were a citizen to receive in the Member State of which he is a national treatment less favourable than he would enjoy if he had not availed himself of the opportunities offered by the Treaty in relation to freedom of movement (Case C-224/98 D’Hoop  [2002] ECR I-6191, paragraph 30, and Schwarz and Gootjes-Schwarz , paragraph 88).
71. Those opportunities could not be fully effective if a national of a Member State could be deterred from availing himself of them by obstacles placed in the way of his stay in the host Member State by legislation in his State of origin penalising the mere fact that he has used them ( Schwarz and Gootjes-Schwarz , paragraph 89 and case-law cited).