(Reference for a preliminary ruling from the hof van beroep te Antwerpen)

(Freedom to provide services – Free movement of capital – Direct taxation – Difference in treatment according to the place of investment)

Summary of the Judgment

Free movement of capital – Restrictions – Fiscal legislation

Article 56 EC precludes legislation of a Member State under which taxpayers resident in that Member State who receive interest or dividends from investments made in another Member State are subject to a supplementary municipal tax when they have not elected for that income from moveable assets to be paid to them by an intermediary established in their Member State of residence, whereas income of the same type from investments made in their Member State of residence, because it is subject to withholding tax at source, need not be declared and, in that case, is not subject to the supplementary municipal tax.

The introduction by a Member State of a difference in treatment on the basis of the place of investment of capital thus has the effect of discouraging residents of that Member State from investing their capital in a company established in another Member State and also has a restrictive effect on companies established in other Member States in that it constitutes an obstacle to their raising capital in the first Member State. In that regard, the situation of a taxpayer who has made investments in the Member State does not differ from that of a taxpayer who has made investments in another Member State. In the context of such legislation, a resident taxpayer who has received income from investments made in another Member State is just as liable to pay tax on that income in his Member State of residence as a resident taxpayer who has received income from investments made in his Member State of residence. Therefore, in such a situation, the fact that that income is subject to different taxation arrangements is precisely what gives rise to the difference in treatment which results in only income received from investments made in another Member State being necessarily subject to the supplementary municipal tax, but it does not reflect a different situation on the part of the taxpayers concerned with regard to that tax. Concerning such a tax, established by the conurbations and municipalities for all the taxpayers of the same conurbation or municipality and the basis of assessment of which is personal income tax, a resident taxpayer who receives income from investments made in another Member State is not in a situation which is objectively different from that of a resident taxpayer who receives income from investments made in his Member State of residence. In those circumstances, such legislation constitutes a restriction on the free movement of capital.

Such a restriction is not justified by the need to maintain the coherence of the national tax system since it not shown that there is any particular tax levy offsetting the advantage represented by the exemption of the supplementary municipal tax for income from an investment made in the taxpayer’s Member State of residence. Moreover, although the need to maintain the effectiveness of fiscal supervision may support the claim that the levying of tax at source can be effected only by intermediaries established in the national territory, it cannot justify the fact that income subject to that levy and income not so subject are treated differently for the purposes of the supplementary municipal tax.

(see paras 31, 45-48, 57, 59, 62, operative part)

1 July 2010 (*)

(Freedom to provide services – Free movement of capital – Direct taxation – Difference in treatment according to the place of investment)

In Case C‑233/09,

REFERENCE for a preliminary ruling under Article 234 EC from the hof van beroep te Antwerpen (Belgium), made by decision of 16 June 2009, received at the Court on 26 June 2009, in the proceedings

Gerhard Dijkman,

Belgische Staat,

THE COURT (First Chamber),

composed of A. Tizzano, President of the Chamber, E. Levits (Rapporteur), M. Ilešič, M. Safjan and M. Berger, Judges,

Advocate General: P. Mengozzi,

Registrar: R. Grass,

having regard to the written procedure,

after considering the observations submitted on behalf of:

– Mr Dijkman and Ms Dijkman-Lavaleije, by themselves,

– the Belgian Government, by J.-C. Halleux, acting as Agent,

– the European Commission, by R. Lyal and W. Roels, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

This reference for a preliminary ruling concerns the interpretation of Article 56(1) EC.

The reference has been made in the course of proceedings between Mr Dijkman and Ms Dijkman-Lavaleije and the Belgische Staat (Belgian State) concerning the refusal of the Belgian tax authorities to reimburse them, in particular, the municipal tax additional to personal income tax (‘the supplementary municipal tax’) levied for the years of assessment 2004 and 2005 in proportion to the personal income tax (‘PIT’) imposed on certain income from moveable assets from investments made in the Netherlands.

National legal context

Directive 2011/92

Recitals 7 to 9 of Directive 2011/92 state:

‘(7) Development consent for public and private projects which are likely to have significant effects on the environment should be granted only after an assessment of the likely significant environmental effects of those projects has been carried out. …

(8) Projects belonging to certain types have significant effects on the environment and those projects should, as a rule, be subject to a systematic assessment.

(9) Projects of other types may not have significant effects on the environment in every case and those projects should be assessed where the Member States consider that they are likely to have significant effects on the environment.’

Article 2(1) of that directive provides:

‘Member States shall adopt all measures necessary to ensure that, before development consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects on the environment. Those projects are defined in Article 4.’

Under Article 3(1) of that directive:

‘The environmental impact assessment shall identify, describe and assess in an appropriate manner, in the light of each individual case, the direct and indirect significant effects of a project on the following factors:

…

(b) biodiversity, with particular attention to species and habitats protected under [Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7), as amended by Council Directive 2013/17/EU of 13 May 2013 (OJ 2013 L 158, p. 193) (“Directive 92/43”)] and Directive 2009/147/EC [of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (OJ 2010 L 20, p. 7)];

…’

Article 4 of Directive 2011/92 provides:

‘1. Subject to Article 2(4), projects listed in Annex I shall be made subject to an assessment in accordance with Articles 5 to 10.

(a) a case-by-case examination;

(b) thresholds or criteria set by the Member State.

Member States may decide to apply both procedures referred to in points (a) and (b).

Where a case-by-case examination is carried out or thresholds or criteria are set for the purpose of paragraph 2, the relevant selection criteria set out in Annex III shall be taken into account. Member States may set thresholds or criteria to determine when projects need not undergo either the determination under paragraphs 4 and 5 or an environmental impact assessment, and/or thresholds or criteria to determine when projects shall in any case be made subject to an environmental impact assessment without undergoing a determination set out under paragraphs 4 and 5.

Where Member States decide to require a determination for projects listed in Annex II, the developer shall provide information on the characteristics of the project and its likely significant effects on the environment. The detailed list of information to be provided is specified in Annex IIA. The developer shall take into account, where relevant, the available results of other relevant assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The developer may also provide a description of any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

The competent authority shall make its determination, on the basis of the information provided by the developer in accordance with paragraph 4 taking into account, where relevant, the results of preliminary verifications or assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The determination shall made available to the public and:

(a) where it is decided that an environmental impact assessment is required, state the main reasons for requiring such assessment with reference to the relevant criteria listed in Annex III; or

(b) where it is decided that an environmental impact assessment is not required, state the main reasons for not requiring such assessment with reference to the relevant criteria listed in Annex III, and, where proposed by the developer, state any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

Member States shall ensure that the competent authority makes its determination as soon as possible and within a period of time not exceeding 90 days from the date on which the developer has submitted all the information required pursuant to paragraph 4. In exceptional cases, for instance relating to the nature, complexity, location or size of the project, the competent authority may extend that deadline to make its determination; in that event, the competent authority shall inform the developer in writing of the reasons justifying the extension and of the date when its determination is expected.’

Annex II.A of that directive contains the list of ‘information to be provided by the developer on the projects listed in Annex II’. That list reads as follows:

‘1. A description of the project, including in particular:

(a) a description of the physical characteristics of the whole project and, where relevant, of demolition works;

(b) a description of the location of the project, with particular regard to the environmental sensitivity of geographical areas likely to be affected.

(a) the expected residues and emissions and the production of waste, where relevant;

(b) the use of natural resources, in particular soil, land, water and biodiversity.

4. The criteria of Annex III shall be taken into account, where relevant, when compiling the information in accordance with points 1 to 3.’

Annex III to that directive sets out the ‘criteria to determine whether the projects listed in Annex II should be subject to an environmental impact assessment’.

Directive 2014/52

Recitals 11 and 29 of Directive 2014/52 state:

‘(11) The measures taken to avoid, prevent, reduce and, if possible, offset significant adverse effects on the environment, in particular on species and habitats protected under [Directive 92/43] and Directive 2009/147 …, should contribute to avoiding any deterioration in the quality of the environment and any net loss of biodiversity, in accordance with the [European] Union’s commitments in the context of the [United Nations Convention on Biological Diversity, signed in Rio de Janeiro on 5 June 1992,] and the objectives and actions of the Union Biodiversity Strategy up to 2020 laid down in the [Communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions] of 3 May 2011 entitled ‘Our life insurance, our natural capital: an EU biodiversity strategy to 2020’ [(COM(2011) 244 final)]

…

When determining whether significant effects on the environment are likely to be caused by a project, the competent authorities should identify the most relevant criteria to be considered and should take into account information that could be available following other assessments required by Union legislation in order to apply the screening procedure effectively and transparently. In this regard, it is appropriate to specify the content of the screening determination, in particular where no environmental impact assessment is required. Moreover, taking into account unsolicited comments that might have been received from other sources, such as members of the public or public authorities, even though no formal consultation is required at the screening stage, constitutes good administrative practice.’

Directive 92/43

Article 6(3) of Directive 92/43 provides:

‘Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.’

Article 12(1) of that directive provides:

‘Member States shall take the requisite measures to establish a system of strict protection for the animal species listed in Annex IV(a) in their natural range, prohibiting:

(a) all forms of deliberate capture or killing of specimens of these species in the wild;

(b) deliberate disturbance of these species, particularly during the period of breeding, rearing, hibernation and migration;

(c) deliberate destruction or taking of eggs from the wild;

(d) deterioration or destruction of breeding sites or resting places.’

Point (a) of Annex IV to that directive mentions ‘all species’ of bats belonging to the suborder of ‘microchiroptera’.

Irish law

The existence of a restriction on the fundamental freedoms guaranteed by the EC Treaty

20It should be recalled that, according to well-established case law, although direct taxation falls within their competence, the Member States must none the less exercise that competence consistently with European Union law (see, inter alia, Case C-374/04 Test Claimants in Class IV of the ACT Group Litigation [2006] ECR I-11673, paragraph 36; Case C-379/05 Amurta [2007] ECR I-9569, paragraph 16; and Case C-540/07 Commission v Italy [2009] ECR I-0000, paragraph 28).

21It must first of all be noted that the Belgian Government considers that the present case must be examined under Article 49 EC and not under Article 56 EC. According to that government, since only Belgian intermediaries can deduct the exonerating withholding tax, whether or not a taxpayer resident in Belgium who invests capital in another Member State can benefit from the system of that withholding tax depends on the place where he receives his income from moveable assets, and not on the place where he invested his capital.

22It is therefore necessary to determine at the outset whether, and to what extent, national legislation such as that at issue in the main proceedings is liable to affect the exercise of the freedom to provide services and the free movement of capital.

23It should be borne in mind, first, that Article 49 EC requires the abolition of all restrictions on the freedom to provide services, even if those restrictions apply without distinction to national providers of services and to those from other Member States, when they are liable to prohibit, impede or render less advantageous the activities of a service provider established in another Member State where it lawfully provides similar services (see Case C‑42/07 Liga Portuguesa de Futebol Profissional and Bwin International [2009] ECR I‑0000, paragraph 51 and the case-law cited).

24Furthermore, it is settled case-law that Article 49 EC confers rights not only on the provider of services but also on the recipient (see, to that effect, Case C‑290/04 FKP Scorpio Konzertproduktionen [2006] ECR I‑9461, paragraph 32 and the case-law cited).

25Secondly, measures taken by a Member State which are liable to dissuade its residents from obtaining loans or making investments in other Member States constitute restrictions on movements of capital within the meaning of Article 56(1) EC (see, inter alia, Case C-478/98 Commission v Belgium [2000] ECR I‑7587, paragraph 18; and Joined Cases C-155/08 and C-157/08 X and Passenheim-van Schoot ECR I‑0000, paragraph 33).

26It is apparent from settled case-law that, in order to determine whether national legislation falls within the scope of one or other of the fundamental freedoms guaranteed by the Treaty, the purpose of the legislation concerned must be taken into consideration (see, to that effect, Case C‑157/05 Holböck [2007] ECR I-4051, paragraph 22 and the case-law cited).

27Legislation such as that at issue in the main proceedings introduces a difference in treatment on the basis both of the origin of the income of resident taxpayers from moveable assets and of the service provider who pays them that income.

28In particular, first, as stated by the referring court, the legislation at issue in the main proceedings introduces a difference in treatment as between income of Belgian residents from moveable assets from investments made in another Member State and income from investments made in Belgium, the former needing to be declared and, consequently, subject to supplementary taxation, namely the supplementary municipal tax, whereas the latter is exempted therefrom as a result of the system of exonerating withholding tax.

29Secondly, as the Belgian Government contends, a Belgian resident who has made investments in another Member State can elect that the income from moveable assets relating to those investments be paid to him by an intermediary established in Belgium, in which case that income can benefit from the system of exonerating withholding tax and, therefore, escape the supplementary municipal tax. The payment of income from investments made in another Member State constitutes a provision of services within the meaning of Article 49 EC.

30Such legislation is, consequently, liable to affect the exercise of both the free movement of capital and the freedom to provide services.

31The introduction by a Member State of a difference in treatment on the basis of the place of investment of capital thus has the effect of discouraging residents of that Member State from investing their capital in a company established in another Member State and also has a restrictive effect on companies established in other Member States in that it constitutes an obstacle to their raising capital in the first Member State (see, to that effect, Case C-446/04 Test Claimants in the FII Group Litigation [2006] ECR I-11753, paragraph 166, and Case C‑436/06 Grønfeldt [2007] ECR I-12357, paragraph 14).

32Similarly, since only intermediaries established in Belgium can collect the exonerating withholding tax, national legislation such as that at issue in the main proceedings puts intermediaries established in Belgium in a more advantageous position to provide services linked to the payment to Belgian residents of income from investments made in other Member States than intermediaries established in those other Member States and, consequently, makes the services of the latter less attractive.

33However, it is apparent from the case-law that the Court will in principle examine the measure in dispute in relation to only one of those two freedoms if it appears, in the circumstances of the main proceedings, that one of them is entirely secondary in relation to the other and may be considered together with it (Case C‑452/04 Fidium Finanz [2006] ECR I-9521, paragraph 34; see also, by analogy, Case C‑182/08 Glaxo Wellcome [2009] ECR I-0000, paragraph 37).

34In the present case, the dispute in the main proceedings relates to the levying of supplementary municipal tax on income from investments made in another Member State and concerns therefore the consequences of the exercise of the free movement of capital for resident taxpayers.

35Thus, it is precisely the exercise of that freedom which results, for the taxpayer, in the need to elect an intermediary for the payment of income from the investments concerned. The choice of that intermediary and, consequently, the issues concerning the freedom to provide services are, in such a situation, secondary in relation to the issues concerning the free movement of capital.

36Therefore, in the light of the considerations set out in paragraph 31 of the present judgment, it must be held that national legislation, such as that at issue in the main proceedings, constitutes a restriction on the free movement of capital, prohibited, in principle, by Article 56 EC.

37That conclusion is not undermined by the Belgian Government’s arguments which, first, seek to minimise the effects of the difference in treatment resulting from the national legislation at issue in the main proceedings and, secondly, contend that, concerning the system of exonerating withholding tax, a taxpayer who invests in Belgium is in a different position from a taxpayer who invests in another Member State.

38Concerning the first point, it should first of all be noted that, with regard to the treatment of the interest and dividends at issue in the main proceedings, it is irrelevant that certain other types of income from moveable assets are not subject to exonerating withholding tax even where they are received in Belgium and are, as a result, always subject to supplementary municipal tax, since interest and dividends of the same type which are received in Belgium are subject to the system of withholding tax.

39The Belgian Government also contends that the difference in treatment does not necessarily unfavourably affect the recipients of income from moveable assets from another Member State, inasmuch as the payment of the tax by means of exonerating withholding tax results in a cash-flow disadvantage for the taxpayer, who is immediately deprived of the amount of that tax, whereas, where the tax is paid in the normal context of the PIT assessment, he can retain that amount in general for two years and, therefore, receive income therefrom.

40In that regard, it should be stated that the imposition, by a Member State, of a supplementary tax on income from moveable assets from investments made in another Member State, as opposed to income from investments made in the first Member State, constitutes in itself unfavourable tax treatment which is inconsistent with the free movement of capital.

41In accordance with the case-law, unfavourable tax treatment contrary to a fundamental freedom cannot be considered to be compatible with European Union law as a result of the existence of other advantages, even supposing that such advantages exist (see, to that effect, Case C‑35/98 Verkooijen [2000] ECR I-4071, paragraph 61, and Amurta, paragraph 75).

42Moreover, a restriction on a fundamental freedom is prohibited by the Treaty, even if it is of limited scope or minor importance (see, to that effect, Case C-34/98 Commission v France [2000] ECR I-995, paragraph 49; Case C-9/02 de Lasteyrie du Saillant [2004] ECR I-2409, paragraph 43; and Case C-170/05 Denkavit Internationaal and Denkavit France [2006] ECR I-11949, paragraph 50).

43The Belgian Government cannot therefore successfully contend that charging income from investments made in another Member State to supplementary municipal tax can be compensated by the cash-flow advantage which would result to resident taxpayers who receive that income, in contrast to the income of resident taxpayers from investments made in the Member State of residence, which is subject to withholding tax.

44Concerning the second point, the Belgian Government submits that the situation of a taxpayer who has made investments in Belgium differs from that of a taxpayer who has made investments in another Member State. In the latter case, the management and collection of exonerating withholding tax cannot be entrusted to the non-resident person liable to pay out income from moveable assets without there being a likelihood of recovery difficulties in the event of an insufficient payment of that withholding tax. In Case C-282/07 Truck Center [2008] ECR I‑10767, the Court implicitly acknowledged that such difficulties are not satisfactorily resolved by international recovery assistance instruments and that taxpayers established abroad are therefore in a different situation from resident taxpayers with regard to the recovery of the tax.

45In that regard, it suffices to note that, in the context of legislation such as that at issue in the main proceedings, a resident taxpayer who has received income from investments made in another Member State is just as liable to pay tax on that income in his Member State of residence as a resident taxpayer who has received income from investments made in his Member State of residence.

46Therefore, in such a situation, the fact that that income is subject to different taxation arrangements is precisely what gives rise to the difference in treatment which results in only income received from investments made in another Member State being necessarily subject to the supplementary municipal tax, but it does not reflect a different situation on the part of the taxpayers concerned with regard to that tax.

47Concerning a tax such as that at issue in the main proceedings, established by the conurbations and municipalities for all the taxpayers of the same conurbation or municipality and the basis of assessment of which is personal income tax, a resident taxpayer who receives income from investments made in another Member State is not in a situation which is objectively different from that of a resident taxpayer who receives income from investments made in his Member State of residence.

48In those circumstances, it must be held that Member State legislation such as that at issue in the main proceedings constitutes a restriction on the free movement of capital.

The justification for the restriction on the free movement of capital

49As is apparent from settled case-law, national measures restricting the free movement of capital may be justified on the grounds set out in Article 58 EC or by overriding reasons in the public interest provided that they are appropriate to secure the attainment of the objective which they pursue and do not go beyond what is necessary in order to attain it (see, to that effect, Case C-112/05 Commission v Germany [2007] ECR I‑8995, paragraphs 72 and 73 and the case‑law cited).

50According to the Belgian Government, the legislation at issue in the main proceedings is justified by reasons relating to the coherence and specific nature of the Belgian tax system and the need to guarantee the effectiveness of fiscal supervision.

51Thus, in its submission, the monopoly granted to intermediaries established in Belgium regarding the drafting of the ad hoc declaration of the deduction and payment of the withholding tax is inherent to the Belgian tax system and constitutes a method of tax collection which is simple for taxpayers and cheap for the State, since intermediaries who are liable for that withholding tax bear the administrative burden of the collection and payment of that tax.

By centralising the collection of tax on income from moveable assets received from abroad on Belgian intermediaries, the Belgian tax system rationalises control measures by limiting them to a few hundred actors, which, by allowing the financial flows of each intermediary who is liable for the withholding tax to be comprehensively monitored, guarantees the effectiveness of fiscal supervision. If the personal taxpayer resident in Belgium were allowed to deduct the withholding tax due on his own income from moveable assets received from abroad, such monitoring of those flows would be rendered almost impossible, because it would be necessary to assess them on the basis of the withholding tax declarations made by millions of actors.

53Likewise, authorising (i) persons liable to pay out income from movable assets or (ii) financial intermediaries established in another Member State to collect exonerating withholding tax on behalf of Belgian residents would also not allow the effectiveness of fiscal supervision by the Belgian tax authorities to be guaranteed, as international instruments to facilitate the establishment of taxes could not entirely guarantee the effectiveness of fiscal supervision so far as traders established in other Member States are concerned.

54With regard to the grounds of justification thus mentioned, it must be pointed out that the Court has already acknowledged that the need to maintain the coherence of a tax system can justify a restriction on the exercise of fundamental freedoms guaranteed by the Treaty (Case C‑204/90 Bachmann [1992] ECR I-249, paragraph 28; Case C‑319/02 Manninen [2004] ECR I-7477, paragraph 42; and Case C‑418/07 Papillon [2008] ECR I-8947, paragraph 43).

55For an argument based on such a justification to succeed, the Court requires, however, that a direct link be established between the tax advantage concerned and the offsetting of that advantage by a particular tax levy, with the direct nature of that link falling to be examined in the light of the objective pursued by the rules in question (see Papillon, paragraph 44 and the case-law cited).

56As has already been held in paragraph 46 of this judgment, a difference in treatment such as that at issue in the main proceedings is not limited to the application of different taxation arrangements according to whether the income concerned derives from investments made in another Member State or in the Member State of residence. The different taxation arrangements concerned result in income from moveable assets from an investment made in another Member State, and not subject to withholding tax, being liable to an additional tax in the form of the supplementary municipal tax, whereas income from an investment made in Belgium can be exempt from that municipal tax by virtue of the fact that it need not be declared where it has been subject to withholding tax.

57The Belgian Government, however, has not shown that there is any particular tax levy offsetting the advantage represented by that exemption.

58Secondly, the Court has acknowledged that the need to guarantee the effectiveness of fiscal supervision constitutes an overriding reason in the public interest capable of justifying a restriction on the exercise of fundamental freedoms guaranteed by the Treaty (see, to that effect, X and Passenheim-van Schoot, paragraph 45 and the case-law cited).

59However, although the need to maintain the effectiveness of fiscal supervision may support the Belgian Government’s view that the levying of the exonerating withholding tax can be effected only by intermediaries established in Belgium, it cannot justify the fact that income subject to that withholding tax and income not so subject are treated differently for the purposes of the supplementary municipal tax.

60Moreover, the Court has already held that practical difficulties cannot of themselves justify the infringement of a fundamental freedom guaranteed by the Treaty (see Papillon, paragraph 54 and the case-law cited).

61Therefore, it must be held that the grounds put forward by the Belgian Government cannot justify the restriction on the free movement of capital resulting from legislation such as that at issue in the main proceedings.

62In light of the foregoing, the answer to the question referred is that Article 56 EC precludes legislation of a Member State according to which taxpayers resident in that Member State who receive interest or dividends from investments made in another Member State are subject to a supplementary municipal tax when they have not elected for that income from moveable assets to be paid to them by an intermediary established in their Member State of residence, whereas income of the same type from investments made in their Member State of residence, because it is subject to withholding tax at source, need not be declared and, in that case, is not subject to the supplementary municipal tax.

Costs

63Since 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 (First Chamber) hereby rules:

Article 56 EC precludes legislation of a Member State according to which taxpayers resident in that Member State who receive interest or dividends from investments made in another Member State are subject to a supplementary municipal tax when they have not elected for that income from moveable assets to be paid to them by an intermediary established in their Member State of residence, whereas income of the same type from investments made in their Member State of residence, because it is subject to withholding tax at source, need not be declared and, in that case, is not subject to the supplementary municipal tax.

[Signatures]

*

Language of the case: Dutch.