Morfometría de cuencas hidrográficas

The ECJ has stated that the effectiveness of fiscal supervision can be considered as a legitimate justification under the “rule of reason”. This justification was first stated in the Cassis de Dijon case341 _{(indirect taxation) and was confirmed in the Futura}342 _and

Baxter343 _{cases in the area of direct taxation. It should be noted that the ECJ has not}

338 _{Case C-80/94 Wielockx v Inspecteur der Directe Belastingen [1995] ECR I-2493, paras. 24-25.}

339 _{Terra B., and Wattel P., European Tax Law, 3}rd _{edition, p. 75.}

340 _{Schuch, J., ‘Will EC Law Transform Tax Treaties into Most-Favoured-Nation Clauses?’, in Gassner,}

Lang and Lechner (eds.), Tax Treaties and EC Law, p. 114.

341 _{Case 120/78 Rewe-Zentral AG v Bundesmonopolverwaltung für Branntwein [1979] ECR 649, para. 8.}

342 _{Case C-250/95 Futura Participations SA and Singer v Administration des contributions [1997] ECR I-}

2471, para. 31.

343 _{Case C-254/97 Société Baxter, B. Braun Médical SA, Société Fresenius France and Laboratoires Bristol-}

Myers-Squibb SA v Premier Ministre, Ministère du Travail et des Affaires sociales, Ministère de l'Economie et des Finances and Ministère de l'Agriculture, de la Pêche et de l'Alimentation [1999] ECR I-4809, para. 18.

yet actually accepted this justification in the area of direct taxation.344 _{However, it is}

for the purpose of this study essential to determine whether Member States can rely on the effectiveness of fiscal supervision when denying the application of MFN treatment. Guidance on the matter can be derived from the ECJ’s reasoning in the

Futura case.

The Futura case concerned the carry forward of losses of a French company’s PE in Luxembourg. Luxemburg allowed the PE’s profits to be determined according to the French accounting rules. However, in order to qualify for the carry forward of losses from previous years, Luxembourg legislation required that the losses were economi- cally related to income received in Luxembourg and that “proper accounts” were kept within the country, i.e., the accounts relating to the taxpayer’s activities in Lux- embourg must comply with the relevant Luxembourg rules.345 _{The legal issue was}

whether the requirements for benefiting from the carry forward rules were compati- ble with the freedom of establishment.

The ECJ considered that the requirement of an economic link for carrying forward losses to the income earned in Luxembourg was compatible with the EC Treaty.346

However, the ECJ did not accept the requirements of holding “proper accounts” since it meant that a company wishing to carry forward any losses incurred by its PE must keep, in addition to its own accounts, separate accounts for its PE’s activities.347

This condition affects companies having their seat in another Member State and is prohibited under Article 43 EC (ex Article 52).348 _{The ECJ referred to the Cassis de}

Dijon case and held that it could possibly be justified under the effectiveness of fiscal supervision.349 _{The ECJ concluded that the national provision was disproportionate}

and therefore not justifiable since the losses could be ascertained in a less restrictive manner. The ECJ considered that this could be achieved through the French ac- counts and referred to Directive 77/799 (the Mutual Assistance Directive). The com- petent authorities of a Member State can, according to this Directive, request the competent authorities of another Member State to provide them with all the infor- mation enabling them to ascertain, in relation to the legislation which they have to apply, the correct amount of revenue tax payable by a taxpayer having his residence in that other Member State.350

The ECJ’s reasoning in the Futura case can be found in other cases. Many Member States have tried to rely on the effectiveness of fiscal supervision in order to justify national measures in breach of the fundamental freedoms. However, the ECJ has de- nied its application because it does not fulfil the principle of proportionality.351 _The

344 _{Ståhl, K., and Persson Österman, R., EG-skatterätt, p. 126.}

345 _{Case C-250/95 Futura Participations SA and Singer v Administration des contributions [1997] ECR I-}

2471, para. 9. 346_{Ibid., para. 22.} 347_{Ibid., para. 25.} 348_{Ibid., para. 26.} 349_{Ibid., para. 31.} 350_{Ibid., paras. 40-41.}

351 _{See for example Case C-204/90 Hanns-Martin Bachmann v Belgian State [1992] ECR I-249, Case C-}

Member States often claim that it is difficult to receive information from abroad but the ECJ simply refers to Directive 77/799, which provides the authorities of Member States the right to exchange information with each other. This indicates that the ECJ will take a similar standpoint when dealing with justifications for denying the appli- cation of MFN treatment. Consequently, the application of the effectiveness of fiscal supervision in terms of MFN treatment is limited to areas where the Member States cannot through Directive 77/799 obtain relevant information about taxpayers claim- ing MFN treatment. This seems very distant in the author’s point of view. Further- more, the fact that the ECJ has never applied the effectiveness of fiscal supervision as a legitimate justification indicates that it has a limited scope and will most likely not be applied when a Member State denies the application of MFN treatment.352