Opinion of the Advocate-General
1 By order of 19 May 1998, the Regeringsrätten (Swedish Supreme Administrative Court) referred to the Court for preliminary ruling a question concerning the interpretation of Article 52 (now, after amendment, Article 43 EC), Article 73b (now Article 56 EC) and Article 73d (now Article 58 EC) of the EC Treaty, which had arisen in proceedings between two Swedish companies and the body responsible for delivering binding decisions on tax assessment matters.
The national legislation
(a) Preliminary decisions on tax assessment matters
2 In the Swedish legal system, the Regeringsrätten rules on appeals against decisions of Skatterättsnämnden (Revenue Law Commission). That body has jurisdiction under the Lagen (1951:442) om Förhandsbesked i Taxeringsfrågor (Law on Preliminary Decisions on Tax Matters 1951:442) to deliver binding preliminary decisions on the application of tax legislation, in particular national or local direct taxes, upon application by individual taxpayers. Applications for decisions must be made in writing, no later than the latest date by which the tax declaration must be submitted for the tax year to which the application relates. The procedure is completely confidential. A preliminary decision delivered by the Skatterättsnämnden is binding on the tax administration for the tax year in question if the taxpayer requests that it be so and provides proof that all the conditions for its application have been fulfilled. Decisions may be referred to the Regeringsrätten by the taxpayer, by the Riksskatteverket (National Tax Board) and, in certain cases, by the local authority concerned. In practice, decisions delivered by the Skatterättsnämnden have a significance that goes beyond the particular questions brought to its attention, inasmuch as they set precedents for the interpretation and application of Swedish tax rules.
(b) The rules on intra-group transfers
3 Under Swedish tax rules, a group of companies or undertakings is not as such a taxable person. However, individual companies or undertakings in the group are regarded as taxable persons. Under Paragraph 2(3) of the Lagen (1947:576) om Statlig Inkomstskatt (Law on State Income Tax 1947:576, hereinafter `the SIL'), transfers between companies belonging to the same group are treated under certain conditions as having fiscal effect. Under those rules, if a Swedish company owns more than nine tenths of the shares in another Swedish company, transfers which those companies make to each other are treated as deductible expenses for the transferor and as taxable income for the transferee. The aim of the group transfer rules is that the tax burden on a business carried on by a number of undertakings in a group should not be greater than if it is carried on by a single undertaking.
Under the second subparagraph of Paragraph 2(3) SIL, which contains rules on mergers, those provisions are extended to transfers made by a parent undertaking to a subsidiary which is not wholly owned by the parent, if the ownership relationship between the two companies throughout the tax year has been such that the transferee could be deemed to be merged into the parent undertaking. In that regard, a merger can be considered to be possible where the parent undertaking owns more than nine tenths of the shares of the subsidiary.
4 The rules just described have in view only transfers made between Swedish undertakings belonging to the same group. The question has frequently arisen in cases before the Regeringsrätten as to whether or not this restriction of the tax relief afforded under the SIL to Swedish undertakings alone is compatible with the prohibition on discrimination contained in Sweden's double-taxation agreements with other countries. In a 1993 ruling, the Regeringsrätten extended the benefits of the abovementioned law to transfers made by a Swedish parent company to a subsidiary controlled through a foreign company, on condition that there was a double-taxation agreement in force between Sweden and the State in question. That particular case concerned transfers from a Swedish parent undertaking to another Swedish undertaking which was owned by the parent undertaking's American subsidiary.
However, the existence of double-taxation agreements does not authorise the application of the tax deductions provided for in the SIL to transfers made to a subsidiary, where the shares in the subsidiary are owned by two or more foreign companies wholly controlled by the parent undertaking. The Regeringsrätten took the view that there was no scope for the simultaneous application of two or more double-taxation agreements since the provisions in each of those agreements were designed to be applied solely to undertakings of the contracting States and not to undertakings of other States.
The facts and the question referred by the national court
5 In June 1996, in the course of an operation to reorganise a group of companies, the parent company, X AB, and its Swedish subsidiary, Y AB, sought a preliminary decision from the Skatterättsnämnden on the application to their 1997-1999 tax assessment of the provisions governing intra-group transfers laid down in Paragraph 2(3) SIL. At the time when their application for a preliminary decision was made, the group owned 99.8% of the shares in Y AB. That 99.8% was distributed as follows: 58% was owned by X AB directly and the rest by companies wholly controlled by X AB. In order to improve the financing of the acquisition of Y AB, the parent company intended to sell 15% of its shareholding in Y AB to a wholly-owned Dutch subsidiary, Z BV. It was also considering the possibility of selling a further 15% to a wholly-owned German subsidiary, Y GmbH.
6 In the application submitted to Skatterättsnämnden for a preliminary decision, X AB sought to ascertain the fiscal results in three different cases. It also wanted to know whether it could make transfers to Y AB with the fiscal effect envisaged in Paragraph 2(3) SIL. In particular, it asked Skatterättsnämnden what the tax implications would have been for the tax years 1997-1999, if the shares in Y AB had been owned exclusively by X AB and the wholly-owned dutch subsidiary Z BV, if Z BV had acquired 15% of the shares in X AB, and lastly if Z BV and the German company Y GmbH had each acquired 15% of the shares in X AB.
7 On 22 November 1996, the Skatterättsnämnden delivered a preliminary decision in which it found that the fiscal effects applying to intra-group transfers were applicable in the first case, by virtue of the merger rule contained in the second subparagraph of Paragraph 2(3) SIL. It held that they were also applicable in the second case, by virtue of the non-discrimination clause contained in a double-taxation agreement signed by Sweden and the Netherlands. Finally, in the third case, the Skatterättsnämnden did not consider that there was any right to the fiscal effects since, although Sweden had signed two double-taxation agreements, with Germany and the Netherlands respectively, according to the case-law of Regeringsrätten, they could not apply simultaneously. Skatterättsnämnden also held that its decision could not be reviewed in the light of Community law.
8 X AB and Y AB appealed against the preliminary decision to the Regeringsrätten. They claimed that Skatterättsnämnden's decision, in so far as it did not consider that the fiscal effects applied to intra-group transfers in the third case too, constituted discrimination prohibited by the Treaty and was, in particular, contrary to Articles 6 (now, after amendment, Article 12 EC), 52, 58 and 73b of the EC Treaty.
9 In order to determine the matter, the Regeringsrätten considered it necessary to refer the following question to the Court for a preliminary ruling:
`Under Paragraph 2(3) of Law 1947:576 on State Income Tax, an intra-group transfer is treated, under certain conditions, as having fiscal effect if it is made by a Swedish limited liability company to another Swedish limited liability company which is wholly owned either by the first-named company directly or by that company together with a wholly-owned Swedish subsidiary or subsidiaries. The fiscal result is the same if one, or more, of the wholly-owned subsidiaries is foreign provided that they have their seat in one and the same Member State and Sweden has concluded with that State a double-taxation agreement containing a non-discrimination clause. Against that background, is it compatible with existing Community law, in particular Article 52 in combination with Article 58 and Article 73b and d of the Treaty of Rome, to apply a set of rules under which an intra-group transfer is not treated as having the same fiscal effect when the Swedish parent company instead owns the recipient company together with two or more wholly-owned foreign subsidiaries which are established in different Member States with which Sweden has concluded a double-taxation agreement containing a non-discrimination clause?'
Admissibility
10 It must first be determined whether the Regeringsrätten is to be regarded as a `court or tribunal of a Member State' within the meaning of Article 177 of the EC Treaty (now Article 234 EC) when it gives judgment on the annulment of a preliminary decision delivered by the Skatterättsnämnden.
11 In this connection, it is common knowledge that the term `court or tribunal' within the meaning of that article is a `Community' term; in order to determine whether a body such as the body in question is a `court or tribunal', the Court takes account of a number of factors, such as whether the body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes, whether it applies rules of law and whether it is independent. (1) The Court has also stated that a national court may refer a question to the Court only if there is a case pending before it and if it is called upon to give judgment in proceedings intended to lead to a decision of a judicial nature. (2)
In the light of that last criterion, the Court held, for example, that the questions referred by the Tribunale Civile e Penale di Milano (Civil and Criminal District Court, Milan) in the context of non-contentious proceedings under Article 2330 of the Italian Civil Code for confirmation of the articles of association of a company were inadmissible. The Court considered that in exercising that authority, the national court was performing an administrative not a judicial function. (3) However it held that the reference by the Corte d'Appello di Milano (Court of Appeal, Milan) in the context of the appeal seeking to have the Tribunale's decision set aside, was admissible inasmuch as that court was a court or tribunal within the meaning of the Treaty. (4)
12 As there appears to be no doubt that all the other conditions specified in the case-law of the Court are satisfied in the present case, it remains to be ascertained whether the Regeringsrätten, before which an appeal has been brought against the decisions of the Skatterättsnämnden, is being called upon to give judgment in proceedings which are intended to lead to a judicial decision.
I consider that the answer should be in the affirmative. In the context of the proceedings described above, the Regeringsrätten is intervening to determine by a binding decision a genuine dispute concerning an action brought by the taxpayer. The dispute turns on the legality of a decision delivered by the Skatterättsnämnden that may affect the taxpayer's rights inasmuch as it is binding on the tax administration.
13 That view is confirmed by the Court's judgment in Victoria Film. (5) In that case, the Court held that the Skatterättsnämnden was not called upon to decide a dispute and was not therefore to be regarded as a court or tribunal for the purposes of Article 177 of the Treaty inasmuch as it does not have as its task to review the legality of the decisions of the tax authorities `but rather to adopt a view, for the first time, on how a specific transaction is to be assessed to tax'. Consequently, the Court continued, `where, upon application by a taxable person, the Skatterättsnämnden gives a preliminary decision on a matter of assessment or taxation, it performs a non-judicial function which, moreover, in other Member States is expressly entrusted to the tax authorities' (paragraph 17). The Court therefore concluded that the Skatterättsnämnden `acts in an administrative capacity when giving a preliminary binding decision, which serves the taxpayer's interest inasmuch as he is better able to plan his activities, but it is not called upon to decide a dispute'. That being said, the Court nevertheless immediately added that `it is only where the taxpayer or the Riksskatteverket brings an action challenging a preliminary decision that the court or tribunal, before which the matter is thus brought, could, for the purposes of Article 177 of the Treaty, be regarded as performing a judicial function (6) with the object of reviewing the legality of an act determining a taxpayer's assessment to tax' (paragraph 18).
14 The conclusion that the Regeringsrätten is to be regarded as a `court or tribunal' when it is called upon to review the legality of the decisions delivered by the Skatterättsnämnden is not however sufficient reason for holding the reference for a preliminary ruling to be admissible. It must also be determined whether the Court is being asked to rule on the interpretation of Community law in the context of a real dispute, not a purely hypothetical one. The Court has occasionally considered that, in order to determine whether it has jurisdiction, it may examine the conditions in which the case has been referred to it by the national court. In its judgment in Foglia v Novello, (7) in particular, the Court observed that `the duty assigned to the Court by Article 177 is not that of delivering advisory opinions on general or hypothetical questions but of assisting in the administration of justice in the Member States. It accordingly does not have jurisdiction to reply to questions of interpretation which are submitted to it within the framework of procedural devices arranged by the parties in order to induce the Court to give its views on certain problems of Community law which do not correspond to an objective requirement inherent in the resolution of a dispute' (paragraph 18). (8) The Court intended, in this way, to limit the opportunities for abuse of the preliminary-ruling procedure whereby it might be induced to deliver rulings on artificial cases arranged by the parties.
15 That being established - and incidentally I do not find the conclusion reached in the case I have just cited altogether convincing in so far as it redefines the role of the national court - I do not think that the facts in the present case suggest that the dispute is a fictitious one, artificially created to obtain a ruling from the Court on the compatibility of the Swedish rules with Community law. The parties submitted three questions to the Skatterättsnämnden on three company operations and subsequently brought an appeal against the preliminary decision, which is detrimental to them, before the only judicial body with jurisdiction to determine its legality. The dispute pending before the Regeringsrätten is thus a genuine dispute between the applicants and the tax authorities over the content of the preliminary decision. The applicants are seeking a ruling in their favour so that they may benefit in the tax years 1997-1999 from fiscal effects from which they would otherwise be debarred.
I consider that the condition is also met that a ruling by the Court must be necessary in order to decide the dispute before the national court. I do not think there is any reason to consider that the present case exhibits the features that have in the past led the Court to take the view that the question referred by the national court was manifestly irrelevant. (9) It is clear from the order for reference that the national court finds that it is having to apply rules which are probably contrary to provisions of Community law and that it wants to know how the Court interprets those provisions in order to decide what set of rules should apply to the transfers at issue. The Court's answer, which will be binding on the tax authorities, will have a direct effect on the applicants' assets and the amount of tax they are required to pay.
16 In the light of the foregoing considerations, I therefore take the view that the Court should hold the questions referred to it by the Regeringsrätten to be admissible.
Freedom of establishment
17 Turning now to the substance, it should be noted first that the national court, albeit in the form of a single question, is really seeking clarification from the Court on the interpretation of Treaty rules relating, on the one hand, to freedom to establish companies (Articles 52 and 58 of the Treaty) and, on the other, to free movement of capital (Articles 73b, and 73d of the Treaty). I shall therefore consider the question from both points of view.
18 By the first part of the question, the national court is seeking to ascertain whether the provisions on freedom of establishment preclude the application of national rules under which, in the case of intra-group transfers, there is a fiscal effect only if the transfers are made between Swedish companies or to companies established in Sweden but owned by other foreign companies established in another State with which Sweden has concluded a double-taxation agreement containing a non-discrimination clause. Where, on the contrary, the transfers are made to companies not owned wholly by Swedish companies but also by foreign subsidiaries established in a number of States, there can be no fiscal effect even if Sweden has concluded a double-taxation agreement with each of those States. The Regeringsrätten is therefore seeking to ascertain whether the prohibition on the simultaneous application of two or more double-taxation agreements concluded by Sweden with other Member States is compatible with Community law.
19 I take the view that, in order to provide the national court with a full answer, the question should be extended to allow the Court to examine whether the Community provisions on freedom of establishment preclude the rules contained in the Swedish legislation in principle, that is to say irrespective of whether or not there is a double-taxation agreement. It should therefore be considered whether the abovementioned articles of the Treaty preclude legislation of a Member State under which a parent company cannot benefit from fiscal effects if the company to which a transfer is made is owned by companies belonging to the same group but established in other Member States.
20 In that connection, the Court has pointed out on a number of occasions that, although it is true that, in the absence of Community provisions for the harmonisation of national legislation, questions relating to direct taxation are a matter for the Member States, they must nevertheless exercise their powers consistently with Community law. It follows that measures designed to limit or restrict the free movement of natural or legal persons or prescribing discriminatory treatment in tax matters fall in principle within the ambit of Article 52 of the Treaty. The freedom of establishment which the Treaty grants to nationals of another Member State and which entails the right for them to take up and pursue activities of 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, 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. (10)
21 The Court added that even though, according to their wording, the provisions concerning freedom of establishment are directed mainly to 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 Member 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. (11) Thus the principle of freedom of establishment has a dual purpose: to ensure that foreign nationals and companies are treated in the host Member State in the same way as nationals of that State and to prevent the Member State of origin from hindering the establishment in another Member State of one of its nationals or of a company incorporated under its legislation.
22 It should also be noted that the Court has pointed out on a number of occasions that freedom of establishment constitutes one of the fundamental principles of the Community and the provisions in which it is enshrined confer unconditional rights which can be restricted only on grounds of overriding general interest such as public policy, public security or public health (Article 56 of the EC Treaty, now, after amendment, Article 46 EC). Only in such compelling and exceptional circumstances can discriminatory national legislation be justified. Considerations of a purely economic nature, such as loss of tax revenue or the risk of tax evasion, cannot justify restrictions on a fundamental right guaranteed by the Treaty. (12)
23 Bearing the foregoing considerations in mind, all that now remains to be determined is whether the Swedish rules entail restrictions on freedom of establishment and, if so, whether the restrictions can be justified in the light of Article 56 of the Treaty.
24 In that connection, it should first be observed that the requirement imposed by the Swedish rules, to the effect that the shares in the transferee must be wholly owned by Swedish companies if a transfer is to be treated as having fiscal effect under the terms of the SIL, appears on the face of it to be discriminatory. That requirement precludes fiscal effect in cases where transfers are made between a Swedish company and companies even partly owned by other companies established in another Member State. The fact that the fiscal effect nevertheless applies in cases where a double-taxation agreement has been concluded is irrelevant, since the scope of Article 52 of the Treaty cannot depend on the existence of such agreements; indeed, precisely on the subject of double-taxation agreements, the Court has held that `the rights conferred by Article 52 of the Treaty are unconditional and a Member State cannot make respect for them subject to the contents of an agreement concluded with another Member State. In particular, that article does not permit those rights to be made subject to a condition of reciprocity imposed for the purpose of obtaining corresponding advantages in other Member States'. (13)
25 The Swedish rules constitute a restriction on Swedish companies' right of establishment abroad in that they discourage those companies from having subsidiaries established in other Member States. Although there is nothing to prevent a Swedish company from pursuing its activities with the assistance of subsidiaries established in various Member States, the rules on intra-group transfers constitute an obvious obstacle to freedom of establishment in that a Swedish company wishing to make transfers to a subsidiary also established in Sweden cannot benefit from fiscal effects if the transferee is owned by that company together with other companies established in two or more other Member States. That treatment is clearly discriminatory inasmuch as it is an essential condition for the granting of fiscal effect that the companies concerned be Swedish or that the companies owning shares in them be established in only one other State with which Sweden has concluded a double-taxation agreement.
26 Moreover, the restriction in question cannot be justified in the light of any of the derogations from freedom of establishment permitted under the Treaty. It cannot be explained on the ground of protecting any of the overriding interests envisaged in Article 56, namely public policy, public security or public health. As to the risk of tax evasion, the Swedish Government itself admitted in the course of the oral procedure that this is not a consideration in cases where the parent company to which the fiscal effect applies is established in Sweden. In any event, as the provisions at issue are discriminatory, it is sufficient to repeat that `Article 52 of the EEC Treaty does not permit any derogation from the fundamental principle of freedom of establishment on such a ground'. (14) Considerations of a purely economic nature, such as loss of tax revenue, cannot justify restrictions of a discriminatory character which fall within the scope of Article 52 of the Treaty. (15)
27 In the light of the foregoing considerations, I propose that the Court should answer the question referred by the Regeringsrätten to the effect that Articles 52 and 58 of the Treaty are to be interpreted as precluding national legislation, such as the Swedish legislation, under which tax relief in the event of intra-group transfers depends on the transferor having its seat in its territory and the transferee being wholly owned by the transferor or by the transferor together with a company of a Member State with which Sweden has concluded a double-taxation agreement.
Free movement of capital
28 That conclusion concerning the interpretation of the Community rules on freedom of establishment is sufficient in itself to provide a useful answer to the question referred by the national court. However, for the sake of completeness I shall now consider the second part of the question referred by the Regeringsrätten, concerning the interpretation of the Treaty provisions on free movement of capital.
29 It should be noted in this connection that the EC Treaty, in which Articles 73b to 73g are concerned with capital and payments, contains no definition of the term `capital movements'. However, as the Court has recently stated: (16) `Inasmuch as Article 73b of the EC Treaty substantially reproduces the contents of Article 1 of Directive 88/361/EEC and even though that directive was adopted on the basis of Articles 69 and 70(1) of the EEC Treaty, which have since been replaced by Article 73b et seq. of the EC Treaty, the nomenclature in respect of movements of capital annexed to Directive 88/361 still has the same indicative value, for the purposes of defining the notion of capital movements, as it did before the entry into force of Article 73b et seq., subject to the qualification, contained in the introduction to the nomenclature, that the list set out therein is not exhaustive'.
30 It is apparent from points (1) and (2) of section I, `Direct investments', in Annex I to that directive, that capital movements include: `1. Establishment and extension of branches or new undertakings belonging solely to the person providing the capital, and the acquisition in full of existing undertakings; 2. Participation in new or existing undertakings with a view to establishing or maintaining lasting economic links'. The present case is concerned with the acquisition and sale of shares in foreign companies. Moreover, the Court has classified various operations as `capital movements', including the export of bank notes, the deposit of securities abroad, investing in foreign companies, and mortgage and financial guarantees denominated in the currencies of other Member States. (17)
31 In the light of those considerations, I take the view that the acquisition by a Swedish company of shares or investments in other companies established in another Member State can be classified as capital movements within the meaning of Article 73b of the Treaty and Directive 88/361.
32 That being said and having reiterated that, even in the absence of harmonisation measures, the Member States are required to exercise their powers in matters of taxation consistently with Community law, the application of tax measures must not have the effect of obstructing capital movements that comply with the provisions of Community law. Legislation, such as the Swedish legislation, which imposes restrictions on freedom of establishment that are not justified under the terms of the Treaty, also constitutes a restriction on the free movement of capital in so far as it is such as to dissuade Swedish companies from investing in companies of other Member States, the result being to deprive them of the tax relief to which they would be entitled if all the companies involved in the group were Swedish or were established in a State with which Sweden had concluded a double-taxation agreement.
33 I therefore consider that Article 73b precludes national legislation, under which the grant of tax relief in the event of intra-group transfers depends on the transferor having its seat in national territory and the transferee being wholly owned by a Swedish company or by that company together with companies of countries with which Sweden has concluded a double-taxation agreement. The Swedish rules are such as to dissuade Swedish companies from establishing or investing in subsidiaries established in the territory of other Member States.
Conclusions
In the light of the foregoing observations, I propose that the Court should give the following answer to the question referred by the Regeringsrätten:
Articles 52 (now, after amendment, Article 43 EC), 73b and 73d (now Articles 56 EC and 58 EC) of the EC Treaty are to be interpreted as precluding national legislation, such as the Swedish legislation, under which the grant of tax relief in the event of intra-group transfers depends on the transferor having its seat in its territory and the transferee being wholly owned by the transferor or by the transferor together with a company of a Member State with which Sweden has concluded a double-taxation agreement.
(1) - See the judgments in Case 61/65 Vaassen [1966] ECR 261, Case 14/86 Pretore di Salò 1987 [ECR] 2545, and Case C-54/96 Dorsch Consult [1997] ECR I-4961.
(2) - Order in Case 318/85 Greis Unterweger [1986] ECR 955, and judgment in Joined Cases C-74/95 and C-129/95 Criminal proceedings against X [1996] ECR I-6609.
(3) - Judgment in Case C-111/94 Job Centre I [1995] ECR I-3361.
(4) - Judgment in Case C-55/96 Job Centre II [1997] ECR I-7119.
(5) - Case C-134/97 Victoria Film [1998] ECR I-7023, paragraphs 16 to 18.
(6) - My emphasis.
(7) - Case 244/80 Foglia v Novello [1981] ECR 3045.
(8) - See also judgment in Case C-83/91 Meilicke [1992] ECR I-4871, paragraphs 26 to 32.
(9) - See, for example, order in Case C-428/93 Monin Automobiles [1994] ECR I-1707 and judgment in Case C-134/95 USSL no 47 di Biella [1997] ECR I-195.
(10) - Judgments in Case 270/83 Commission v France [1986] ECR 273, paragraph 18, and Case C-264/96 ICI [1998] ECR I-4695, paragraph 20.
(11) - Judgments in Case 81/87 Daily Mail and General Trust [1988] ECR 5483, paragraph 16, and Case C-264/96 ICI, cited above, paragraph 21.
(12) - Judgments in Case C-288/89 Gouda [1991] I-4007 and Case C-484/93 Svensson [1995] ECR I-3955.
(13) - Case 270/83 Commission v France, cited above, paragraph 26.
(14) - Judgment in Case 270/83 Commission v France, cited above, paragraph 25.
(15) - Advocate General Tesauro's Opinion in Case C-264/96 ICI, cited above, point 23.
(16) - Case C-222/97 Trummer and Mayer [1999] ECR I-1661.
(17) - Judgments in Case 203/80 Casati [1981] ECR 2595, Case 157/85 Brugnoni and Ruffinengo [1986] ECR 2013, Case C-148/91 Vereniging Veronica [1993] ECR I-487, and Case C-118/96 Safir [1998] ECR I-1897.
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