Société d’investissement pour l’agriculture tropicale SA (SIAT) v État belge.
Date: 2012-07-05
18. The Court has consistently held that Article 49 EC 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 entirely within a single Member State (see, inter alia, Joined Cases C-155/08 and C-157/08 X and Passenheim-van Schoot  [2009] ECR I-5093, paragraph 32 and the case-law cited). Restrictions on the freedom to provide services are national measures which prohibit, impede or render less attractive the exercise of that freedom (see, inter alia, Case C-330/07 Jobra  [2008] ECR I-9099, paragraph 19, and Case C-287/10 Tankreederei I  [2010] ECR I-14233, paragraph 15).
19. Furthermore, it is settled case-law that Article 49 EC confers rights not only on the provider of services but also on the recipient (see Case C-294/97 Eurowings Luftverkehr  [1999] ECR I-7447, paragraph 34; Case C-290/04 FKP Scorpio Konzertproduktionen  [2006] ECR I-9461, paragraph 32; and Case C-233/09 Dijkman and Dijkman-Lavaleije  [2010] ECR I-6645, paragraph 24).
28. Accordingly, that special rule — which lays down stricter conditions for being allowed to deduct business expenses than those laid down in the general rule and the scope of which has not been delimited with precision beforehand — is liable both to dissuade Belgian taxpayers from exercising their right to the freedom to provide services and from making use of the services of providers established in another Member State and to dissuade those providers from offering their services to recipients established in Belgium (see, to that effect, Case C-422/01 Skandia and Ramstedt  [2003] ECR I-6817, paragraph 28 and the case-law cited).
34. It is clear from the case-law of the Court that a restriction on the freedom to provide services is regarded as warranted only if it pursues a legitimate objective compatible with the EC Treaty and is justified by overriding reasons relating to the public interest, in which case it must be suitable for securing the attainment of that objective and must not go beyond what is necessary in order to do so (see, inter alia, Case C-398/95 SETTG  [1997] ECR I-3091, paragraph 21; Case C-341/05 Laval un Partneri [2007] ECR I-11767, paragraph 101; and Jobra , paragraph 27).
36. In that regard, the Court has already held that the prevention of tax evasion is an overriding reason relating to the public interest, capable of justifying a restriction on the exercise of freedom of movement guaranteed by the Treaty (see, inter alia, Case C-451/05 ELISA  [2007] ECR I-8251, paragraph 81), as is the need to guarantee the effectiveness of fiscal supervision (see, inter alia, Case C-101/05 A [2007] ECR I-11531, paragraph 55).
37. By the same token, it has been held that a restriction on the exercise of freedom of movement within the European Union can be justified in order to safeguard the allocation between the Member States of the power to impose taxes (see Joined Cases C-436/08 and C-437/08 Haribo Lakritzen Hans Riegel and Österreichische Salinen  [2011] ECR I-305, paragraph 121 and the case-law cited).
38. First, regarding the prevention of tax evasion, it should be noted that the mere fact that a resident taxpayer uses the services of a non-resident service provider cannot provide a sound basis for a general presumption of abusive practices and justify a measure which compromises the exercise of a fundamental freedom guaranteed by the Treaty (see, by analogy, Case C-436/00 X and Y  [2002] ECR I-10829, paragraph 62; Case C-196/04 Cadbury Schweppes and Cadbury Schweppes Overseas  [2006] ECR I-7995, paragraph 50; Case C-524/04 Test Claimants in the Thin Cap Group Litigation  [2007] ECR I-2107, paragraph 73; Case C-105/07 Lammers & Van Cleeff  [2008] ECR I-173, paragraph 27; and Jobra , paragraph 37).
39. The Court has also held that any tax advantage for service providers resulting from the low taxation to which they are subject in the Member State in which they are established cannot, by itself, be used by another Member State as justification for according less favourable treatment in tax matters to recipients of services established in the latter State (see Eurowings Luftverkehr , paragraph 44, and Skandia and Ramstedt , paragraph 52).
40. In order for a restriction on the freedom to provide services to be justified by the need to combat tax evasion and avoidance, the specific objective of that restriction must be to prevent conduct consisting in the creation of wholly artificial arrangements which do not reflect economic reality, with a view to escaping the tax normally due on the profits generated by activities carried out on the national territory (see, to that effect, Cadbury Schweppes and Cadbury Schweppes Overseas , paragraph 55, and Test Claimants in the Thin Cap Group Litigation , cited above, paragraph 74).
44. It is clear from the case-law of the Court that, in order to ensure the effectiveness of fiscal supervision, which is intended to combat tax evasion, a Member State may apply measures which enable the amount of expenditure deductible in that State as business expenses to be ascertained clearly and precisely (see, to that effect, Case C-254/97 Baxter and Others  [1999] ECR I-4809, paragraph 18; Case C-39/04 Laboratoires Fournier  [2005] ECR I-2057, paragraph 24; and Case C-248/06 Commission v Spain  [2008] ECR I-47, paragraph 34).
45. Thirdly, as regards the balanced allocation between Member States of the power to tax, it should be recalled that such a justification is acceptable, in particular, where the system in question is designed to prevent conduct capable of jeopardising the right of a Member State to exercise its tax jurisdiction in relation to activities carried out in its territory (see Case C-311/08 SGI  [2010] ECR I-487, paragraph 60 and the case-law cited).
46. Conduct of the kind described in paragraph 41 above is such as to jeopardise the right of a Member State to exercise its tax jurisdiction in relation to the activities carried out by resident taxpayers in its territory and to undermine the balanced allocation between Member States of the power to impose taxes (see Cadbury Schweppes and Cadbury Schweppes Overseas , paragraph 56).
48. It must therefore be held that legislation such as that at issue in the main proceedings is suitable for attaining the objectives of preventing tax evasion and avoidance and of preserving both the effectiveness of fiscal supervision and the balanced allocation between Member States of the power to impose taxes, all of which — as is apparent from the foregoing — are closely linked in the case before the referring court.
50. In that regard, it is clear from the case-law of the Court that, where legislation is predicated on an assessment of objective and verifiable elements for the purposes of determining whether a transaction represents a wholly artificial arrangement entered into solely for tax reasons, it may be regarded as not going beyond what is necessary to prevent abusive practices, if, on each occasion on which the existence of such an arrangement cannot be ruled out, that legislation gives the taxpayer an opportunity, without subjecting him to undue administrative constraints, to provide evidence of any commercial justification that there may have been for that arrangement (see, to that effect, Test Claimants in the Thin Cap Group Litigation , paragraph 82).
51. Moreover, neither the tax reasons nor the fact that the same transactions could have been carried out by providers established in the territory of the Member State in which the taxpayer is established warrant, in and of themselves, the conclusion that the transactions in question are not genuine and proper (see, to that effect, Cadbury Schweppes and Cadbury Schweppes Overseas , paragraph 69).
52. Similarly, the Court has held that, where the transaction in question goes beyond what the companies concerned would have agreed under fully competitive conditions, the corrective tax measure must, in order not to be considered disproportionate, be confined to the part which exceeds what would have been agreed under such conditions (see, to that effect, SGI , paragraph 72).
58. Such a rule does not, therefore, meet the requirements of the principle of legal certainty, in accordance with which rules of law must be clear, precise and predictable as regards their effects, in particular where they may have unfavourable consequences for individuals and undertakings (see, to that effect, Case C-17/03 VEMW and Others  [2005] ECR I-4983, paragraph 80, and Joined Cases C-72/10 and C-77/10 Costa and Cifone  [2012] ECR, paragraph 74).
59. As it is, a rule which does not meet the requirements of the principle of legal certainty cannot be considered to be proportionate to the objectives pursued.