Official Journal of the European Union

C 379/3

(Case C-498/10)(1)

(Freedom to provide services - Restrictions - Fiscal legislation - Obligation on the recipient of a service, established in the national territory, to withhold at source the wages tax on the remuneration due to a service provider established in another Member State - No such obligation in respect of a service provider established in the same Member State)

2012/C 379/05

Language of the case: Dutch

Referring court

Parties to the main proceedings

Appellant: X NV

Respondent: Staatssecretaris van Financiën

Re:

Reference for a preliminary ruling — Hoge Raad der Nederlanden — Interpretation of Article 56 TFEU — Restrictions on the freedom to provide services — Withholding at source of tax on remuneration which has to be applied by the recipient of a provision of services, established on the national territory, to remuneration due to a service provider having its seat in another Member State — No such obligation in the case of a service provider having its seat in the same Member State

Operative part of the judgment

1.Article 56 TFEU must be interpreted as meaning that the obligation imposed, under the legislation of a Member State, on the service recipient to withhold at source wages tax on the remuneration paid to service providers established in another Member State, whereas such an obligation does not exist in relation to remuneration paid to service providers who are established in the Member State at issue, constitutes a restriction on the freedom to provide services, within the meaning of that provision, in that it entails an additional administrative burden and related liability risks.

2.In so far as the restriction to the freedom to provide services arising from national legislation, such as that at issue in the main proceedings, results from the obligation to withhold tax at source, in that it entails an additional administrative burden and related liability risks, that restriction can be justified by the need to ensure the effective collection of tax and does not go beyond what is necessary to achieve that purpose, even in the light of the opportunities for mutual assistance in the recovery of taxes presented by Council Directive 76/308/EEC of 15 March 1976 on mutual assistance for the recovery of claims relating to certain levies, duties, taxes and other measures, as amended by Council Directive 2001/44/EC of 15 June 2001. The subsequent renunciation of the withholding tax at issue in the main proceedings cannot prejudice either its appropriateness to achieve the aim pursued or its proportionality, both of which must be assessed solely in the light of the objectives pursued.

3.In order to determine whether the obligation on the service recipient to withhold tax at source, in that it entails an additional administrative burden and related liability risks, constitutes a restriction on the freedom to provide services prohibited by Article 56 TFEU, it is irrelevant whether the non-resident service provider may deduct the tax withheld in the Netherlands from the tax for which he is liable in the Member State in which he is established.

(1) OJ C 13, 15.1.2011.