Keywords
Summary

Keywords

1. Freedom of movement for persons – Freedom of establishment – Provisions of the Treaty – Scope

(Art. 43 EC)

2. Freedom of movement for persons – Freedom of establishment – Tax legislation

(Art. 43 EC)

3. Community law – Rights conferred on individuals – Breach by a Member State

Summary

1. A Community national who has been living in one Member State since the transfer of his residence and who holds all the shares of companies established in another Member State, may rely on Article 43 EC.

(see para. 30, operative part 1)

2. Article 43 EC must be interpreted as precluding a Member State from establishing a system for taxing increases in the value of rights in a company in the case of a taxpayer’s transferring his residence outside that Member State, which makes the granting of deferment of the payment of that tax conditional on the provision of guarantees and does not take full account of reductions in value capable of arising after the transfer of residence by the person concerned and which were not taken into account by the host Member State.

(see para. 55, operative part 2)

3. An obstacle arising from a requirement, in breach of Community law, that a guarantee be constituted cannot be raised with retroactive effect merely by releasing that guarantee. The form of the document on the basis of which the guarantee was released is immaterial to that assessment. Where a Member State makes provision for the payment of interest on arrears where a guarantee demanded in breach of national law is released, such interest is also due in the case of an infringement of Community law. Moreover, it is for the national court to assess, in accordance with the guidelines provided by the Court of Justice and in compliance with the principles of equivalence and effectiveness, whether the Member State is liable on account of the damage caused by the obligation to constitute such a guarantee.

(see para. 67, operative part 3)