Rita van Caster and Patrick van Caster v Finanzamt Essen-Süd.
Date: 2014-10-09
25. It follows from the Court’s settled case-law that the measures prohibited by Article 63(1) TFEU, as restrictions on the movement of capital, include those that are such as to discourage non-residents from making investments in a Member State or to discourage that Member State’s residents from doing so in other States (see judgment in C‑338/11 to C‑347/11 Santander Asset Management SGIIC and Others , EU:C:2012:286, paragraph 15 and the case-law cited, and judgment in C‑375/12 Bouanich , EU:C:2014:138, paragraph 43).
36. Accordingly, by their nature, those obligations are unlikely to be complied with by an investment fund which is not active in the German market and does not actively target that market. As noted by the Advocate General in point 42 of his Opinion, such a fund has little incentive to comply with such requirements.
37. Since such funds are generally non-resident funds, it should be noted that the national legislation at issue in the main proceedings is likely to deter a German investor from acquiring holdings in a non-resident investment fund, since such an investment is likely to expose such an investor to a disadvantageous flat-rate tax without offering him the opportunity to produce evidence or information which could demonstrate the actual size of that investor’s income.
39. However, according to the Court’s well-established case-law, national measures capable of hindering the exercise of the fundamental freedoms guaranteed by the Treaty or of making it less attractive may be allowed only if they pursue a legitimate objective in the public interest, are appropriate to ensuring the attainment of that objective, and do not go beyond what is necessary to attain the objective pursued (see, inter alia, judgment in C‑296/12 Commission  v Belgium , EU:C:2014:24, paragraph 32 and the case-law cited).
41. In that regard, it should be recalled that the preservation of the balanced allocation between Member States of the power to tax is a legitimate objective recognised by the Court (see judgment in C‑371/10, National Grid Indus , EU:C:2011:785, paragraph 45 and the case-law cited), since it may be accepted as a justification for a restriction, in particular, where the system in question is designed to prevent conduct capable of jeopardising the right of a Member State to exercise its fiscal jurisdiction in relation to activities carried out in its territory (see, in particular, judgments in Santander Asset Management SGIIC and Others , EU:C:2012:286, paragraph 47, and C‑350/11 Argenta Spaarbank , EU:C:2013:447, paragraph 53 and the case-law cited).
46. As the Court has already held, overriding reasons in the public interest capable of justifying a restriction on the exercise of freedom of movement guaranteed by the Treaty include both the need to guarantee the effectiveness of fiscal supervision (see, to that effect, judgments in C‑101/05 A , EU:C:2007:804, paragraph 55; C‑155/08 and C‑157/08 X-van Schoot and Passenheim , EU:C:2009:368, paragraph 55; C‑262/09 Meilicke , EU:C:2011:438, paragraph 41, and C‑318/10 SIAT , EU:C:2012:415, paragraph 36) and the need to ensure effective collection of tax (see, to that effect, judgments in C‑269/09 Commission  v Spain  EU:C:2012:439, paragraph 64; C‑498/10 X , EU:C:2012:635, paragraph 39, and C‑53/13 and C‑80/13 Strojírny Prostějov et ACO Industries Tábor , EU:C:2014:2011, paragraph 46).
47. It is inherent in the principle of the fiscal autonomy of Member States that they determine the evidence that must be provided and the formal and material conditions which must be respected to enable the tax authorities to establish correctly the tax owed on the income earned from investment funds (see, by analogy, judgment in Meilicke and Others , EU:C:2011:438, paragraph 37).
49. The legislation of a Member State which indiscriminately prevents taxpayers who have acquired holdings in non-resident investment funds from adducing evidence which satisfies criteria, in particular those of presentation, other than those laid down for national investments by the first Member State, goes beyond what is necessary to ensure effective fiscal supervision (see, to that effect, judgment in Meilicke and Others , EU:C:2011:438, paragraph 43).
50. It is not a priori inconceivable that those taxpayers may be able to provide relevant documentary evidence enabling the tax authorities of the Member State of taxation to ascertain, clearly and precisely, the information required to establish correctly the taxation of the income from investment funds (see, by analogy, judgment in Meilicke and Others , EU:C:2011:438, paragraph 44).
52. The content, the form and the degree of detail which the information submitted by the German taxpayer who acquired holdings in a non-resident investment funds must satisfy in order to take advantage of the transparent tax must be determined by the tax authorities in order to enable them to apply the tax properly (see, by analogy, judgment in Meilicke and Others , EU:C:2011:438, paragraph 45).
55. Moreover, the tax authorities concerned have the power, pursuant to 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 and taxation of insurance premiums (OJ 1977 L 336, p. 15), as amended by Council Directive 2004/106/EC of 16 November 2004 (OJ 2004 L 359, p. 30), in force at the material time, and Council Directive 2011/16/EU of 15 February 2011 on administrative cooperation in the field of taxation and repealing Directive 77/799 (OJ 2011 L 64, p. 1) to request information from the authorities of another Member State for the purposes of obtaining all the information that may be necessary to effect a correct assessment of a taxpayer’s tax liability (see, to that effect, judgments in Haribo Lakritzen Hans Riegel and Österreichische Salinen , EU:C:2011:61, paragraph 101, and Meilicke and Others , EU:C:2011:438, paragraph 51).
56. As regards the administrative burden on the tax authorities of the Member States of taxation that would result from taxpayers being allowed the opportunity to provide the information to demonstrate their income, it should be noted that administrative disadvantages are not alone sufficient to justify a barrier to the free movement of capital (see, to that effect, judgments in C‑334/02 Commission  v France , EU:C:2004:129, paragraph 29; C‑386/04 Centro di Musicologia Walter Stauffer , EU:C:2006:568, paragraph 48, and C‑418/07 Papillon , EU:C:2008:659, paragraph 54).