European Commission v Hellenic Republic.
Date: 2011-01-20
39. It should be recalled at the outset that, according to settled case-law, although direct taxation falls within their competence, the Member States must none the less exercise that competence consistently with EU law (see, inter alia, Case C‑334/02 Commission v France [2004] ECR I-2229, paragraph 21; Case C‑104/06 Commission v Sweden [2007] ECR I‑671, paragraph 12, and Case C‑152/05 Commission v Germany [2008] ECR I‑39, paragraph 16).
41. Article 18 EC, which sets out in general terms the right of every EU citizen to move and reside freely within the territory of the Member States, finds specific expression in Article 39 EC with regard to freedom of movement for workers and in Article 43 EC with regard to freedom of establishment (Case C‑345/05 Commission v Portugal  [2006] ECR I‑10633, paragraph 13; Commission v Sweden , paragraph 15, and Commission v Germany , paragraph 18).
43. The provisions of the Treaty on freedom of movement for persons are intended to facilitate the pursuit by EU nationals of occupational activities of all kinds throughout the European Union, and they preclude measures which might place those nationals at a disadvantage when they wish to pursue an economic activity in the territory of another Member State ( Commission   v Denmark , paragraph 34; Commission  v Portugal , paragraph 15; Commission v Sweden , paragraph 17, and Commission v Germany , paragraph 21).
45. On that point it is sufficient to recall that the Court has consistently held that the rules regarding equal treatment forbid not only overt discrimination by reason of nationality but also all covert forms of discrimination which, by the application of other criteria of differentiation, lead in fact to the same result (see, inter alia, Case 152/73 Sotgiu [1974] ECR 153, paragraph 11; Commerzbank , paragraph 14, and Case C‑103/08 Gottwald  [2009] ECR I‑9117, paragraph 27).
46. That is true, in particular, of a measure under which a distinction is drawn on the basis of residence or ordinary residence, inasmuch as that requirement is liable to operate mainly to the detriment of nationals of other Member States, since persons who are not resident or ordinarily resident on the national territory are in the majority of cases foreigners (see, inter alia, Case C‑224/97 Ciola [1999] ECR I‑2517, paragraph 14; Case C‑388/01 Commission v Italy [2003] ECR I‑721, paragraph 14, and Gottwald , paragraph 28).
51. According to well-established case-law, however, national measures which are liable to hinder or make less attractive the exercise of fundamental freedoms guaranteed by the Treaty may nevertheless be allowed provided that they pursue an objective in the public interest, are appropriate for attaining that objective and do not go beyond what is necessary to attain the objective pursued ( Commission v Portugal , paragraph 24; Commission  v Sweden , paragraph 25, and Commission  v Germany , paragraph 26).
60. In the second place, as regards persons who are not resident in Greece and who are not carrying out any economic activity there, the same conclusion applies, for the same reasons, to the complaint relating to Article 18 EC (see Case C‑522/04 Commission v Belgium [2007] ECR I‑5701, paragraph 72, and Commission  v Germany ,  paragraph 30).
68. In that regard, it is settled case-law that the principle of non-discrimination, whether it has its basis in Article 12 EC or Articles 39 EC or 43 EC, requires that comparable situations must not be treated differently and that different situations must not be treated in the same way. Such treatment may be justified only if it is based on objective considerations independent of the nationality of the persons concerned and is proportionate to the objective being legitimately pursued (see, to that effect, Case C-164/07 Wood  [2008] ECR I-4143, paragraph 13, and Case C‑524/06 Huber  [2008] ECR I‑9705, paragraph 75).