‘TTL’ EOOD v Direktor na Direktsia ‘Obzhalvane i danachno-osiguritelna praktika’ - Sofia.
Date: 2018-07-25
31


According to settled case-law, the Court does not have jurisdiction to reply to a question referred for a preliminary ruling where it is obvious that the provision of EU law referred to the Court for interpretation is incapable of applying (judgements of 20 March 2014, Caixa d’Estalvis i Pensions de Barcelona, C‑139/12, EU:C:2014:174, paragraph 41, and of 30 June 2016, Admiral Casinos & Entertainment, C‑464/15, EU:C:2016:500, paragraph 20).
37


In that regard, it should be pointed out that, according to settled case-law, freedom of establishment entails, for companies formed in accordance with the law of a Member State and having their registered office, central administration or principal place of business within the EU, the right to exercise their activity in other Member States through a subsidiary, branch or agency (judgments of 18 June 2009, Aberdeen Property Fininvest Alpha, C‑303/07, EU:C:2009:377, paragraph 37, and of 21 May 2015, Verder LabTec, C‑657/13, EU:C:2015:331, paragraph 32).
39


In addition, as regards the free movement of capital guaranteed in Article 63(1) TFEU, the Court has defined restrictions on the movement of capital which are prohibited by that provision as including measures which 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 (judgments of 10 February 2011, Haribo Lakritzen Hans Riegel and Österreichische Salinen, C‑436/08 and C‑437/08, EU:C:2011:61, paragraph 50, and of 17 September 2015, Miljoen and Others, C‑10/14, C‑14/14 and C‑17/14, EU:C:2015:608, paragraph 44).
41


However, in accordance with settled case-law, the fact that the referring court has limited its question to the interpretation of certain provisions of EU law does not prevent the Court from providing the referring court with all the elements of interpretation of EU law which may be of assistance in adjudicating on the case before it, whether or not that court has specifically referred to them in that question (see, to that effect, judgments of 14 November 2017, Lounes, C‑165/16, EU:C:2017:862, paragraph 28, and of 30 January 2018, X and Visser, C‑360/15 and C‑31/16, EU:C:2018:44, paragraph 55).
42


In this case, it is apparent from the information in the request for a preliminary ruling that the transaction at issue in the main proceedings is the leasing of rail tankers. As the leasing of vehicles constitutes a supply of services within the meaning of Article 57 TFEU (judgments of 21 March 2002, Cura Anlagen, C‑451/99, EU:C:2002:195, paragraph 19, and of 4 December 2008, Jobra, C‑330/07, EU:C:2008:685, paragraph 22), the case at issue in the main proceedings must be examined from the perspective of freedom to provide services.
44


According to settled case-law, Member States must exercise their competence in the area of direct taxation consistently with EU law and, in particular, with the fundamental freedoms guaranteed by the TFEU (judgments of 23 February 2016, Commission v Hungary, C‑179/14, EU:C:2016:108, paragraph 171, and of 2 March 2017, Eschenbrenner, C‑496/15, EU:C:2017:152, paragraph 45).
45


In that regard, it is important to note that Article 56 TFEU precludes the application of any national rules which have the effect of making the provision of services between Member States more difficult than the provision of services purely within a Member State. In accordance with the Court’s case-law, Article 56 TFEU requires the abolition of any restriction on the freedom to provide services imposed on the ground that the person providing a service is established in a Member State other than that in which the service is provided (see, in particular, judgment of 18 October 2012, X, C‑498/10, EU:C:2012:635, paragraphs 20 and 21 and the case-law cited).
46


Restrictions on the freedom to provide services are national measures which prohibit, impede or render less attractive the exercise of that freedom (judgments of 4 December 2008, Jobra, C‑330/07, EU:C:2008:685, paragraph 19, and of 18 January 2018, Wind 1014 and Daell, C‑249/15, EU:C:2018:21, paragraph 21).
52


It is clear from the case-law of the Court that a restriction on the freedom to provide services is warranted only if it pursues a legitimate objective compatible with the TFEU and is justified by overriding reasons of public interest; if that is the case, it must be suitable for securing the attainment of the objective which it pursues and not go beyond what is necessary in order to attain it (judgments of 18 December 2007, Laval un Partneri, C‑341/05, EU:C:2007:809, paragraph 101; of 4 December 2008, Jobra, C‑330/07, EU:C:2008:685, paragraph 27; and of 26 May 2016, NN (L) International, C‑48/15, EU:C:2016:356, paragraph 58).
53


In that regard, the Bulgarian Government and the respondent administration in the main proceedings submit that the restriction on the freedom to provide services resulting from Article 175(2), point 3 of the Tax Code of Procedure is justified. The Bulgarian Government points to the need to ensure the effective collection of tax and the need to ensure the effectiveness of fiscal supervision, which constitute overriding reasons in the public interest capable of justifying a restriction on the exercise of the fundamental freedoms guaranteed by the Treaty (see, in particular, judgments of 30 June 2011, Meilicke and Others, C‑262/09, EU:C:2011:438, paragraph 41; of 9 October 2014, van Caster, C‑326/12, EU:C:2014:2269, paragraph 46 and the case-law cited; and of 26 May 2016, NN (L) International, C‑48/15, EU:C:2016:356, paragraph 59).
57


As regards the reasons put forward in order to justify the restriction on the freedom to provide services, and as has been noted at paragraph 53 of this judgment, the Court has already held that the need to ensure the effective collection of tax and the need to ensure the effectiveness of fiscal supervision may constitute overriding reasons in the public interest capable of justifying a restriction on the freedom to provide services. The Court has also held that the imposition of penalties, including criminal penalties, may be considered to be necessary in order to ensure compliance with national rules, subject, however, to the condition that the nature and amount of the penalty imposed is in each individual case proportionate to the gravity of the infringement which it is designed to penalise (see, to that effect, judgment of 26 May 2016, NN (L) International, C‑48/15, EU:C:2016:356, paragraph 59 and the case-law cited.)