Algemene Maatschappij voor Investering en Dienstverlening NV (AMID) v Belgische Staat.
Date: 2000-12-14
18 In its observations the Commission has called into question whether the Belgian provisions that were applied in the case concerned in the main proceedings are in conformity with the Convention. There is, however, no need to reply on that point, since the referring court has not asked any question in that respect (see, in particular, Case C-435/97 World Wildlife Fund v Automome Provinz Bozen [1999] ECR I-5613, paragraph 29) and, in any event, the Court of Justice has no jurisdiction under Article 177 of the Treaty to rule on the interpretation of provisions other than those of Community law (see, in particular, the order of 12 November 1998 in Case C-162/98 Hartmann [1998] ECR I-7083, paragraphs 8, 9, 11 and 12).
19 That having been said, it should be remembered that, although direct taxation is a matter for the Member States, they must nevertheless exercise their direct taxation powers consistently with Community law (see Case C-279/93 Schumacker [1995] ECR I-225, paragraph 21; Case C-264/96 ICI v Colmer [1998] ECR I-4695, paragraph 19; Case C-35/98 Staatssecretaris van Financiën v Verkooijen [2000] ECR I-0000, paragraph 32).
20 Moreover, according to established case-law, the freedom of establishment which Article 52 grants to nationals of the Member States and which entails the right for them to take up and pursue activities as self-employed persons under the conditions laid down for its own nationals by the law of the Member State where such establishment is effected, includes, pursuant to Article 58 of the Treaty (now Article 48 EC), the right of 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, to pursue their activities in the Member State concerned through a branch or agency. With regard to companies, it should be noted in this context that it is their corporate seat in the above sense that serves as the connecting factor with the legal system of a particular State, like nationality in the case of natural persons (Case 270/83 Commission v France [1986] ECR 273, paragraph 18; Case C-330/91 Commerzbank [1993] ECR I-4017, paragraph 13; ICI v Colmer, cited above, paragraph 20).
21 Finally, it must be pointed out that, even though, according to their wording, the provisions concerning freedom of establishment are mainly aimed at ensuring that foreign nationals and companies are treated in the host Member State in the same way as nationals of that State, they also prohibit the State of origin from hindering the establishment in another Member State of one of its nationals or of a company incorporated under its legislation which comes within the definition contained in Article 58 of the Treaty (Case 81/87 Daily Mail and General Trust [1988] ECR 5483, paragraph 16; Case C-200/98 X and Y v Riksskatteverket [1999] ECR I-8261, paragraph 26).
27 Even if the Belgian tax system were favourable to companies with establishments abroad more often than not, that does not prevent it resulting, where that system proves disadvantageous for those companies, in an inequality of treatment in relation to companies without establishments outside Belgium and thus creating a hindrance to the freedom of establishment guaranteed by Article 52 of the Treaty (Commission v France, cited above, paragraph 21).