Établissements Rimbaud SA v Directeur général des impôts and Directeur des services fiscaux d’Aix-en-Provence.
Date: 2010-10-28
17. According to settled case-law, capital movements include transactions by which non-residents make investments in immovable property in the territory of a Member State, as is clear from the nomenclature of capital movements, set out in Annex I to Council Directive 88/361, which retains its original indicative value for the purposes of defining the notion of capital movements (see, to that effect, Case C‑222/97 Trummer and Mayer  [1999] ECR I-1661, paragraph 21; Case C-464/98 Stefan  [2001] ECR I-173, paragraph 5; Joined Cases C‑515/99, C‑519/99 to C‑524/99 and C‑526/99 to C‑540/99 Reisch and Others  [2002] ECR I‑2157, paragraph 30; and Case C‑386/04 Centro di Musicologia Walter Stauffer  [2006] ECR I‑8203, paragraph 22).
18. It is common ground that Rimbaud made an investment in immovable property in France. Such a cross-border investment is a capital movement within the meaning of that nomenclature (see, to that effect, ELISA , paragraph 60).
19. Consequently, Article 40 of the EEA Agreement and Annex XII thereto are applicable to a dispute such as that before the referring court, which relates to a transaction between nationals of States which are party to that Agreement. According to settled case-law, the Court may give an interpretation of those provisions where a reference is made by a court of a Member State of the European Union with regard to the scope within that Member State of an agreement which forms an integral part of the EU legal system (see Case C-321/97 Andersson and Wåkerås-Andersson  [1999] ECR I-3551, paragraphs 26 to 31; Case C-300/01 Salzmann  [2003] ECR I-4899, paragraph 65; and Case C‑452/01 Ospelt and Schlössle Weissenberg  [2003] ECR I‑9743, paragraph 27).
20. One of the principal aims of the EEA Agreement is to provide for the fullest possible realisation of the free movement of goods, persons, services and capital within the whole EEA, so that the internal market established within the European Union is extended to the EFTA States. From that angle, several provisions of the EEA Agreement are intended to ensure as uniform an interpretation as possible thereof throughout the EEA (see Opinion 1/92 [1992] ECR I-2821). It is for the Court, in that context, to ensure that the rules of the EEA Agreement which are identical in substance to those of the TFEU are interpreted uniformly within the Member States ( Ospelt and Schlössle Weissenberg , paragraph 29).
21. It is apparent from Article 40 of the EEA Agreement that the rules laid down therein prohibiting restrictions on the movement of capital and discrimination are identical, so far as concerns relations between the States party to the EEA Agreement, irrespective of whether they are members of the European Union or members of EFTA, to the rules under EU law regarding relations between the Member States ( Ospelt and Schlössle Weissenberg , paragraph 28).
22. It follows that, although restrictions on the free movement of capital between nationals of States party to the EEA Agreement must be assessed in the light of Article 40 of that Agreement and Annex XII thereto, those provisions have the same legal scope as Article 63 TFEU (see Case C‑521/07 Commission  v Netherlands  [2009] ECR I‑4873, paragraph 33).
23. It is relevant to point out that, according to settled case-law, while 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‑319/02 Manninen  [2004] ECR I‑7477, paragraph 19; Case C‑292/04 Meilicke and Others  [2007] ECR I‑1835, paragraph 19; Case C‑157/05 Holböck  [2007] ECR I‑4051, paragraph 21; and ELISA , paragraph 68). By the same token, that competence does not allow Member States to apply measures which are contrary to the freedoms of movement guaranteed by similar provisions of the EEA Agreement.
Whether there is a restriction on movements of capital
25. It has been held that exemption from the disputed tax, in the case of legal persons which do not have their centre of management in France – by contrast with other persons liable to the tax – is subject, pursuant to Article 990 E(2) and (3) of the French Tax Code, to an additional condition: a convention must have been concluded between the French Republic and the State concerned. In the absence of such a convention, a legal person which does not have its centre of management in France has no prospect of making a successful application for exemption from the disputed tax, pursuant to Articles 990 D and 990 E(2) and (3) of the French Tax Code. Given that only the States concerned can decide whether to bind themselves by means of conventions, the condition concerning the existence of a convention on administrative assistance or of a treaty may, de facto , entail for that category of legal persons a permanent regime of non-exemption from the disputed tax, making investment in immovable property in France less attractive for non-resident companies (see ELISA , paragraphs 75 to 77).
33. Concerning the justification based on the fight against tax evasion and the need to safeguard the effectiveness of fiscal supervision, it should be noted that a restriction on the free movement of capital is permissible on that ground only if it is appropriate to ensuring the attainment of the objective thus pursued and does not go beyond what is necessary to attain that objective (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; Case C‑524/04 Test Claimants in the Thin Cap Group Litigation  [2007] ECR I‑2107, paragraph 64; and Case C‑101/05 A  [2007] ECR I‑11531, paragraph 55).
34. Thus, a justification based on the fight against tax evasion is permissible only if it targets purely artificial contrivances, the aim of which is to circumvent tax law, and in consequence any general presumption of evasion is excluded. Accordingly, a general presumption of tax avoidance or evasion is insufficient to justify a tax measure which adversely affects the objectives of the Treaty (see, to that effect, Case C‑478/98 Commission  v Belgium  [2000] ECR I‑7587, paragraph 45, and Cadbury Schweppes and Cadbury Schweppes Overseas , paragraph 50 and the case-law cited).
35. A Member State may, therefore, apply measures which enable the amount owed by taxpayers to be ascertained clearly and precisely (see Case C‑39/04 Laboratoires Fournier  [2005] ECR I-2057, paragraph 24).
38. It has been noted that the French legislation at issue in the main proceedings does not allow companies which are excluded from the scope of a convention on administrative assistance and which are not covered by a treaty containing a clause prohibiting discrimination in matters of taxation, but which invest in immovable property located in France, to provide documentary evidence of the identity of their shareholders and any other information which the French tax authorities consider to be necessary. As a result, the Court has held that that legislation prevents those companies from ever being able to demonstrate that their objective is not one of tax evasion. The Court concluded that the French Government could have adopted less restrictive measures in order to attain the objective of combating tax evasion and, as a consequence, that the disputed tax cannot be justified in terms of that objective (see ELISA , paragraphs 99 to 101).
40. However, it should be borne in mind that the case-law concerning restrictions on the exercise of the freedoms of movement within the European Union cannot be transposed in its entirety to movements of capital between Member States and non-member States, since such movements take place in a different legal context (see A , paragraph 60, and Case C‑540/07 Commission  v Italy  [2009] ECR I‑10983, paragraph 69).
41. In that regard, it should be observed that the framework established by Directive 77/799 for cooperation between the competent authorities of the Member States does not exist between those authorities and the competent authorities of a non-member State where that State has not entered into any undertaking of mutual assistance (see Commission  v Italy , paragraph 70)
44. It follows that, where the legislation of a Member State makes the grant of a tax advantage dependent on satisfying requirements, compliance with which can be verified only by obtaining information from the competent authorities of an EEA country which is not a Member State of the European Union, it is in principle legitimate for the Member State to refuse to grant that advantage if – in particular, because that non-member State is not bound under an agreement to provide information – it proves impossible to obtain such information from that country.
45. As regards, in particular, the question whether the French tax authorities should, as the Commission maintains, conduct a case-by-case assessment of the information provided by a company established in an EEA country, it should be noted that it is apparent from ELISA  that, in the context of the European Union, a categorical refusal to grant a tax advantage is not justified, as there is no reason why the French tax authorities should not call upon the taxpayer to produce the evidence that they consider necessary for a correct assessment of the taxes and duties concerned and, as the case may be, refuse the exemption applied for if that evidence is not forthcoming.
46. That case-law does not apply, however, to the different situation of a company established in the Principality of Liechtenstein. Even though, in the situation which was under consideration in ELISA , the Luxembourg authorities were not, by virtue of Article 8(1) of Directive 77/799, under any obligation in principle to provide information, the fact remains that the regulatory framework is quite different.