Krzysztof Filipiak v Dyrektor Izby Skarbowej w Poznaniu.
Date: 2009-11-19
40. According to settled case-law, in proceedings under Article 234 EC, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of Community law, the Court is in principle bound to give a ruling (see, inter alia, Case C‑379/98 PreussenElektra  [2001] ECR I‑2099, paragraph 38, and Case C‑544/07 Rüffler  [2009] ECR I‑0000, paragraph 36).
41. Nevertheless, the Court has also held that, in exceptional circumstances, it can examine the conditions in which the case was referred to it by the national court, in order to confirm its own jurisdiction (see, to that effect, Case 244/80 Foglia  [1981] ECR 3045, paragraph 21; PreussenElektra , paragraph 39; and Rüffler , paragraph 37).
42. The Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of Community law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it ( PreussenElektra , paragraph 39, and Rüffler , paragraph 38).
43. In that regard, it is clear from the order for reference that, irrespective of the question of the constitutionality of the provisions at issue in the main proceedings, the dispute in the main proceedings and the first question in the reference relate to the compatibility with Community law of legislation under which the right to a tax reduction on the basis of payment of health insurance contributions and the right to deduct from the basis of assessment social security contributions which have been paid are refused where those contributions have been paid in another Member State.
45. In light of the foregoing, it is not manifestly obvious that the interpretation sought bears no relation to the actual facts of the main action or its purpose, that the problem is hypothetical, or that the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it.
52. In accordance with well-established case-law, the concept of ‘establishment’ within the meaning of Article 43 EC is a very broad one, allowing a Community national to participate, on a stable and continuous basis, in the economic life of a Member State other than his State of origin (Case C‑55/94 Gebhard  [1995] ECR I‑4165, paragraph 25, and Case C‑470/04 N  [2006] ECR I‑7409, paragraph 26). Where a Community national lives in one Member State and has a shareholding in the capital of a company established in another Member State which gives him substantial influence over the company’s decisions and allows him to determine its activities, that may thus fall within the freedom of establishment (see, to that effect, N , paragraph 27; Case C‑347/04 Rewe Zentralfinanz  [2007] ECR I‑2647, paragraphs 22 and 70; and Case C‑360/06 Heinrich Bauer Verlag  [2008] ECR I‑7333, paragraph 27).
58. It is settled case-law that all of the Treaty provisions on freedom of movement for persons are intended to facilitate the pursuit by Community nationals of occupational activities of all kinds throughout the European Community, and preclude measures which might place them at a disadvantage when they wish to pursue an economic activity in the territory of another Member State (see, inter alia, Case C‑152/05 Commission  v Germany  [2008] ECR I‑39, paragraph 21, and Case C‑527/06 Renneberg  [2008] ECR I‑7735, paragraph 43).
59. In accordance with well-established case‑law, the freedom of establishment which is granted by the Treaty to Community nationals and which includes 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, entails, in accordance with Article 48 EC, for 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 European Community, the right to exercise their activity in the Member State concerned through a subsidiary, branch or agency (see Case C‑105/07 Lammers & Van Cleeff  [2008] ECR I‑173, paragraph 18, and judgment of 23 April 2009 in Case C‑406/07 Commission  v Greece , not published in the ECR, paragraph 36).
60. The Court has also stated on several occasions that, even though, according to their wording, the provisions concerning freedom of establishment are mainly aimed at ensuring that foreign nationals 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 48 EC (see Case C‑251/98 Baars  [2000] ECR I‑2787, paragraph 28; Case C‑9/02 de Lasteyrie du Saillant  [2004] ECR I‑2409, paragraph 42, and Heinrich Bauer Verlag , paragraph 26).
61. Furthermore, 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 purely within a Member State (Case C‑318/05 Commission  v Germany  [2007] ECR I-6957, paragraph 81; Case C‑281/06 Jundt [2007] ECR I‑12231, paragraph 52; and Joined Cases C‑155/08 and C‑157/08 X and Passenheim-van Schoot  [2009] ECR I‑0000, paragraph 32).
62. The case in which tax provisions of a Member State which apply to cross‑border economic activities are less favourable than those which apply to an economic activity pursued within the borders of that Member State constitutes an example of a restriction which is prohibited by Articles 43 EC and 49 EC.
67. It follows that any taxpayer who is resident in Poland but pursues his economic activity in another Member State in which he is subject to compulsory social insurance and health insurance will not be able to deduct the amount of the contributions which he pays from his basis of assessment or to reduce the tax payable in Poland by the amount of those contributions. He will therefore be less favourably treated than any other taxpayer who is resident in Poland but who restricts his economic activity to within the borders of Poland and pays his compulsory social security and health insurance contributions to the competent Polish public authority.
71. In those circumstances, the refusal to grant to the resident taxpayer the right either to deduct from the basis of assessment in Poland the amount of the compulsory social security contributions paid in another Member State or to reduce the tax payable in Poland by the amount of the compulsory health insurance contributions paid in a Member State other than the Republic of Poland may deter that taxpayer from taking advantage of the freedom of establishment and freedom to provide services under Articles 43 EC and 49 EC, and amounts to a restriction on those freedoms (see, to that effect, in relation to Article 18 EC, Rüffler , paragraphs 72 and 73).
81. In accordance with settled case-law, a national court which is called upon, within the exercise of its jurisdiction, to apply provisions of Community law is under a duty to give full effect to those provisions, if necessary refusing of its own motion to apply any conflicting provision of national legislation, even if adopted subsequently, and it is not necessary for the court to request or await the prior setting aside of such provision by legislative or other constitutional means (see, to that effect, Case 106/77 Simmenthal  [1978] ECR 629, paragraph 24; Joined Cases C‑13/91 and C‑113/91 Debus  [1992] ECR I‑3617, paragraph 32; Case C‑119/05 Lucchini [2007] ECR I‑6199, paragraph 61; and Case C‑115/08 ČEZ  [2009] ECR I‑0000, paragraph 138).
83. In that context, it must be recalled that the Court has already held that the incompatibility with Community law of a subsequently adopted rule of national law does not have the effect of rendering that rule of national law non-existent. Faced with such a situation, the national court is obliged to disapply that rule, provided always that this obligation does not restrict the power of the competent national courts to apply, from among the various procedures available under national law, those which are appropriate for protecting the individual rights conferred by Community law (Joined Cases C‑10/97 to C‑22/97 IN.CO.GE.’90 and Others  [1998] ECR I‑6307, paragraph 21).
84. It follows that, in a situation such as that of the applicant in the main proceedings, the deferral by the Trybunał Konstytucyjny of the date on which the provisions at issue will lose their binding force does not prevent the referring court from respecting the principle of the primacy of Community law and from declining to apply those provisions in the proceedings before it, if the court holds those provisions to be contrary to Community law.