Hans Werner v Finanzamt Aachen-Innenstadt.
Date: 1993-01-26
11 The national court states that, in the light of the case-law of the Court, it entertains doubts as to whether the differing tax treatment accorded by the Einkommensteuergesetz and the Vermoegensteuergesetz to residents and non-residents is compatible with Article 52. In that regard, it refers, first, to the judgment in Case 115/78 Knoors v Secretary of State for Economic Affairs [1979] ECR 399 in support of the view that Mr Werner, having established himself in a country other than that in which he resides, is in a situation which may be deemed to be the same as that of all other persons enjoying the rights and liberties guaranteed by the Treaty. Referring next to the judgment in Case C-175/88 Biehl v Administration des Contributions du Grande Duché de Luxembourg [1990] ECR I-1779, it considers that the withholding of fiscal advantages is restrictive of the right of establishment conferred by Article 52. Finally, it observes that, according to the judgment in Case 270/83 Commission v France [1986] ECR 273, unequal treatment in the exercise of the rights conferred by the Treaty cannot be justified by the lack of harmonization of tax legislation or by compliance with a convention concluded with another Member State such as, in the present case, the Agreement of 16 June 1959 between the Federal Republic of Germany and the Kingdom of the Netherlands concerning the avoidance of double taxation as regards income and assets tax and various other taxes and other tax matters (Bundesgesetzblatt 1960 II, p. 1781).
15 Finally, the facts in Commission v France, cited above, are also different. That case was concerned with the application to companies of tax rules which differed according to whether their registered office was in France or in another Member State, with the result that companies in the latter category received less favourable treatment that those established in France. Pursuant to Article 58 of the Treaty, companies or firms formed in accordance with the law of a Member State and having their registered office, central administration or principal place of business within the Community are to be treated, for the purposes of the chapter on the right of establishment, in the same way as natural persons who are nationals of Member States. Against that background, as the Court stated in that judgment (paragraph 18), the registered office in the sense referred to above constitutes the same factor for a company as nationality does for natural persons. However, the different tax treatment provided for in the legislation criticized by Mr Werner is applied by reference not to the nationality of natural persons but to their place of residence.
19 In that connection, Article 7 provides that, within the scope of application of the Treaty and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality is to be prohibited.
20 As the Court held in its judgment in Case 90/76 Van Ameyde v UCI [1977] ECR 1091, paragraph 27, since Article 52 upholds, in the sphere of the right of establishment, the application of the principle laid down by Article 7 of the Treaty, it follows that if rules are compatible with Article 52 they are also compatible with Article 7.