—

Ms Van der Weegen, Mr Van der Weegen and Ms Pot, by C. Hendrickx and M. Vandendijk, advocaten,

—

the Belgian Government, by J.-C. Halleux and M. Jacobs, acting as Agents, assisted by S.D. D’Aloia, expert,

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the European Commission, by W. Roels, acting as Agent,

1

This request for a preliminary ruling concerns the interpretation of Articles 56 and 63 TFEU and Articles 36 and 40 of the Agreement on the European Economic Area of 2 May 1992 (OJ 1994 L 1, p. 3; ‘the EEA Agreement’).

2

The request has been made in proceedings between Ms Maria Eugenia Van der Weegen, Mr Miguel Juan Van der Weegen, Ms Anna Pot, acting as successors in title to Mr Johannes Van der Weegen, and Ms Anna Pot, on the one side, and the Belgische Staat (Belgian State), on the other, concerning the refusal to grant a tax exemption for remuneration received from a savings deposit in a Member State other than the Kingdom of Belgium.

3

Article 21 of the Wetboek van de inkomstenbelastingen 1992 (Income Tax Code) (‘the WIB 1992’), in the version applicable to the tax year 2010 (income from 2009), provided:

‘Income from movable property and capital shall not include:

…

…’

4

In its judgment of 6 June 2013, Commission v Belgium (C‑383/10, EU:C:2013:364), the Court of Justice held that that provision infringed Article 56 TFEU and Article 36 of the EEA Agreement.

5

Article 170 of the Law of 25 April 2014 laying down various provisions (Belgische Staatsblad of 7 May 2014, p. 36946; ‘the Law of 25 April 2014’) amended Article 21(5) of the WIB 1992 as follows:

‘Income from movable property and capital shall not include:

…

…’

6

The explanatory memorandum relating to the amendment of Article 21(5) of the WIB 1992 reads as follows:

‘The requirement that the conditions be similar means, first, that savings deposits must be subject to the same basic conditions mentioned in Article 21(5) of the WIB 1992; and, moreover, that they satisfy the criteria laid down by the public authorities in the Member State concerned with regard to the currency in which the deposits are denominated, and as regards the method of withdrawal and the structure, level and method for calculating their remuneration. Those criteria must be similar to those in force in Belgium. This means that — without being identical — they must be comparable in scope. …’

7

The Koninklijk Besluit (Royal Decree) of 27 August 1993 implementing the WIB 1992 (Belgische Staatsblad of 13 September 1993, p. 20096), as amended by the Royal Decree of 7 December 2008 (Belgische Staatsblad of 22 December 2008, p. 67513) (‘the KB/WIB 92’), lays down the criteria which the savings deposits referred to in Article 21(5) of the WIB 1992 must, moreover, satisfy in order to be able to benefit from application of that article.

8

Article 2 of the KB/WIB 92 provides:

‘In order to be able to benefit from the application of Article 21(5) [of the WIB 1992], the savings deposits referred to in that article must also satisfy the following criteria:

9

The administration published, to that end, the circular Circ. AAFisc No 22/2014 (No Ci.RH.231/633.479) of 12 June 2014, which, in paragraph 2, entitled ‘Criteria to be satisfied by foreign savings deposits covered by the exemption’, provides:

For details of those criteria, it is appropriate to refer to that Article 2 of the KB/WIB 92 …’

10

Mr Johannes Van der Weegen and Ms Pot held, with regard to the tax years from 2010 to 2013, five savings deposits with financial institutions established in a Member State other than the Kingdom of Belgium. They applied for the tax exemption provided for in Article 21(5) of the WIB 1992, as amended by the Law of 25 April 2014.

11

On the ground that none of those institutions could demonstrate that the savings deposits held with them complied with conditions similar to those applicable to regulated Belgian savings deposits, in particular as far as basic interest and the fidelity premium were concerned, the Belgian tax authorities refused to allow the income generated by those savings deposits to benefit from a tax exemption.

12

Mr Johannes Van der Weegen and Ms Pot challenged that decision before the referring court, which expresses uncertainty as to whether Article 21(5) of the WIB 1992, as amended by the Law of 25 April 2014, is compatible with EU law.

13

In those circumstances, the Rechtbank van eerste aanleg, West-Vlaanderen, afdeling Brugge (Court of First Instance for West Flanders, Bruges Division, Belgium) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘Does Article 21(5) of the WIB 1992, as amended by Article 170 of the Law of 25 April 2014, infringe the provisions of Articles 56 and 63 TFEU and of Articles 36 and 40 of the EEA Agreement, inasmuch as the provision in question, although applicable without distinction to domestic and foreign service providers, requires compliance with conditions similar to those included in Article 2 of the Royal Decree implementing the WIB 1992 which are de facto specific to the Belgian market and consequently amount to a serious obstacle to foreign service providers offering their services in Belgium?’

14

According to the information contained in the file before the Court, Mr Johannes Van der Weegen died on 20 January 2016. Ms Van der Weegen, Mr Miguel Juan Van der Weegen and Ms Pot have been subrogated to his rights.

15

It should be recalled that, in the judgment of 6 June 2013, Commission v Belgium (C‑383/10, EU:C:2013:364), the Court held that, by introducing and maintaining a system of discriminatory taxation of interest payments made by non-resident banks, resulting from the application of a tax exemption reserved solely to interest payments made by resident banks, the Kingdom of Belgium had failed to fulfil its obligations under Article 56 TFEU and Article 36 of the EEA Agreement.

16

Following that judgment, that system was amended in such a way that, from then on, the tax exemption has also been applicable to interest payments made by non-resident banks.

17

According to the WIB 1992, as amended by the Law of 25 April 2014, in order for depositors to be able to avail of such an exemption, the savings deposit system in question must satisfy certain criteria, laid down by statute, such as denomination in euros, withdrawal limits and a method for calculating remuneration that must consist of basic interest and a fidelity premium.

18

The WIB provides that deposits received by credit institutions established in another Member State of the European Economic Area must satisfy similar criteria laid down by the competent authorities of that other Member State.

19

According to the explanatory memorandum to the Law of 25 April 2014, ‘the requirement that the conditions be similar means … that savings deposits must be subject to the same basic conditions as those mentioned in Article 21(5) of the WIB 1992’.

20

At the hearing before the Court, the Belgian Government explained that that text must be taken to mean that the conditions to which savings deposits held in banks in a Member State other than Belgium are subject need not be identical to those to which banks established in Belgium are subject, but that it is enough that they be similar.

21

It must, however, be pointed out that, leaving aside that matter, it is common ground that a savings deposit held with a bank established in Belgium or with one established abroad must, in any event, in order to avail of the tax exemption at issue, comply with two conditions in particular.

22

First, such a savings account must be subject to certain restrictions relating to the methods and conditions of withdrawal from that account and, second, remuneration of such an account must consist of both basic interest and a fidelity premium.

23

It is in the light of those considerations that the question referred by the national court must be answered.

24

By its question, the referring court asks, in essence, whether Articles 56 and 63 TFEU and Articles 36 and 40 of the EEA Agreement must be interpreted as precluding a national tax exemption system, such as that provided for in Article 21(5) of the WIB 1992, as amended by the Law of 25 April 2014, which, although applicable without distinction to income from savings deposits held with banking service providers established in Belgium or in another Member State of the EEA, is reserved to income from savings deposits held with banks which comply with conditions which are de facto specific to the national market alone.

25

In order to answer that question, it is appropriate, first, to state that, although such national legislation was capable of coming within the scope of the two fundamental freedoms alluded to by the referring court, the fact remains that any restrictive effects which that legislation might have on the free movement of capital would be no more than the inevitable consequence of any restrictions on the freedom to provide services. Where a national measure relates to several fundamental freedoms at the same time, the Court will in principle examine the measure in relation to only one of those freedoms if it appears, in the circumstances of the case, that the other freedoms are entirely secondary in relation to the first and may be considered together with it (see, by analogy, judgments of 8 September 2009, Liga Portuguesa de Futebol Profissional and Bwin International, C‑42/07, EU:C:2009:519, paragraph 47, and of 11 March 2010, Attanasio Group, C‑384/08, EU:C:2010:133, paragraph 40; and order of 28 September 2016, Durante, C‑438/15, not published, EU:C:2016:728, paragraph 14).

26

It follows that the tax exemption system at issue must be examined exclusively in the light of Article 56 TFEU and Article 36 of the EEA Agreement.

27

Moreover, it should be stated that banking services constitute services within the meaning of Article 57 TFEU. Article 56 TFEU precludes the application of any national legislation which, without objective justification, impedes a provider of services from actually exercising the freedom to provide those services (see, to that effect, judgment of 14 January 2016, Commission v Greece, C‑66/15, not published, EU:C:2016:5, paragraph 22 and the case-law cited).

28

In the present case, the legislation at issue in the main proceedings establishes a tax system which is applicable without distinction to the remuneration received from a savings deposit paid by banks established in Belgium and to that paid by banks established in another Member State.

29

However, even national legislation which applies without distinction to all services, irrespective of the place of establishment of the provider, is liable to constitute a restriction on the freedom to provide services in so far as it reserves an advantage solely to users of services which comply with certain conditions which are de facto specific to the national market and thus deny that advantage to users of other services which are essentially similar but do not comply with the specific conditions provided for in that legislation. Such legislation affects the situation of users of services as such and is thus liable to discourage them from using the services of certain providers, since the services offered by them do not comply with the conditions laid down in that legislation, thus directly affecting access to the market (see, to that effect, judgments of 10 May 1995, Alpine Investments, C‑384/93, EU:C:1995:126, paragraphs 26 to 28 and 35 to 38, and of 10 November 2011, Commission v Portugal, C‑212/09, EU:C:2011:717, paragraph 65 and the case-law cited).

30

It is therefore necessary to verify, as a first step, whether the national legislation at issue in the main proceedings, although applicable without distinction, creates impediments to the freedom to provide services.

31

In that regard, it should be recalled that, as the circular Circ. AAFisc No 22/2014 states, deposits must satisfy the criteria defined in Article 2 of the KB/WIB 92, which provide, inter alia, that withdrawals from such deposits must be limited in order to distinguish them from a current account and that the remuneration received on savings deposits must necessarily and exclusively consist of basic interest and a fidelity premium.

32

It is also apparent from the clarifications provided by the interested parties in the course of the hearing before the Court that there is no system relating to savings deposits in the Member States of the EEA other than the Kingdom of Belgium that complies with the conditions laid down by Article 2 of the KB/WIB 92, particularly those involving remuneration of such deposits. It appears that that method of remuneration is specific to the Belgian banking market.

33

Thus, the national legislation at issue, although applicable without distinction to remuneration received from savings accounts opened with institutions established in Belgium and from those opened in other Member States of the EEA, first, has the effect of discouraging, in fact, Belgian residents from using the services of banks established in those other Member States and from opening or keeping savings accounts with those latter banks, since the interest paid by those banks cannot benefit from the tax exemption at issue, in particular because the remuneration of the savings accounts does not consist of a rate of basic interest and a fidelity premium.

34

Second, that legislation is such as to discourage holders of a savings account with a bank established in Belgium, which complies with the exemption conditions, from transferring their account to a bank established in another Member State that does not offer accounts meeting those conditions.

35

Therefore, that legislation is capable of constituting an impediment to the freedom to provide services, prohibited, in principle, by the first paragraph of Article 56 TFEU to the extent that it imposes conditions for access to the Belgian banking market on service providers established in other Member States, this being a matter for the referring court to verify, in particular in view of the information set out in paragraph 29 of the present judgment.

36

Second, it is necessary to verify whether such an impediment can be justified by the reasons put forward by the Belgian Government.

37

It should be recalled that national measures which are liable to hinder or make less attractive the exercise of fundamental freedoms guaranteed by the Treaty may nevertheless be allowed provided that they pursue an objective in the public interest, that they are appropriate for attaining that objective and that they do not go beyond what is necessary to attain the objective pursued (see, inter alia, judgment of 6 June 2013, Commission v Belgium, C‑383/10, EU:C:2013:364, paragraph 49 and the case-law cited).

38

The Belgian Government argues that the legislation at issue contributes to consumer protection. It states that, to that end, it is crucial that Belgian residents should have a savings account that is sustainable, protected, stable, sufficient and risk-free so as to be able to cover their significant or unforeseen expenses.

39

In that regard, the Court has held that consumer protection features among the overriding reasons in the public interest capable of justifying a restriction on the freedom to provide services (see, inter alia, judgment of 23 January 2014, Commission v Belgium, C‑296/12, EU:C:2014:24, paragraph 47).

40

It is thus for the referring court to verify, first, whether the legislation at issue addresses such an overriding reason in the public interest.

41

It is for that court, next, to satisfy itself that the tax system at issue — assuming that it does indeed pursue such an objective — does not go beyond what is necessary to attain that objective and that it complies with the principle of proportionality.

42

Even assuming that the system at issue addresses a reason in the public interest, in depriving, in fact, all income from the savings accounts available in the internal market — with the exception of that from accounts held in banks established in Belgium — of the benefit of that exemption, that system is liable to exclude savings accounts opened in banking institutions, particularly in non-Belgian banking institutions, which would enable the same objective as that pursued by that system, namely consumer protection, to be attained. In particular, none of the arguments presented before the Court provides any basis on which to take the view that the application of the conditions laid down in Article 2 of the KB/WIB 92, relating to remuneration of deposits, would be necessary to attain that objective.

43

Thus, consumer protection cannot be invoked as justification for the impediment to the freedom to provide services under examination.

44

As far as Article 36 of the EEA Agreement is concerned, it must be noted that this provision is similar to that set out in Article 56 TFEU, with the result that the considerations relating to that latter article, set out in paragraphs 27 to 43 of the present judgment, also apply in respect of Article 36 of the EEA Agreement.

45

It follows from all of the foregoing considerations that the answer to the question referred is that Article 56 TFEU and Article 36 of the EEA Agreement must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which provides for a national tax exemption system, to the extent that that system, although applicable without distinction to income from savings deposits held with banking service providers established in Belgium or in another Member State of the EEA, imposes conditions for access to the Belgian banking market on service providers established in other Member States, this being a matter for the referring court to verify.

46

Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Fifth Chamber) hereby rules:

Article 56 TFEU and Article 36 of the Agreement on the European Economic Area of 2 May 1992 must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which provides for a national tax exemption system, to the extent that that system, although applicable without distinction to income from savings deposits held with banking service providers established in Belgium or in another Member State of the European Economic Area, imposes conditions for access to the Belgian banking market on service providers established in other Member States, this being a matter for the referring court to verify.