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	Číslo (Kód CELEX): Number (CELEX Code):		61990J0204

	Název: Title:		JUDGMENT OF THE COURT OF 28 JANUARY 1992. HANNS-MARTIN BACHMANN V BELGIAN STATE. REFERENCE FOR A PRELIMINARY RULING: COUR DE CASSATION - BELGIUM. ARTICLES 48, 59, 67 AND 106 OF THE EEC TREATY - DEDUCTION OF INSURANCE CONTRIBUTIONS. CASE C-204/90.

	Publikace: Publication:		REPORTS OF CASES 1992 PAGES I-0249

	Předmět (klíčová slova): Keywords		FREE MOVEMENT OF WORKERS;FREEDOM OF ESTABLISHMENT AND SERVICES;FREE MOVEMENT OF SERVICES;

	Související předpisy: Corresponding acts:		157E048;157E059;157E067;157E106

	Odkaz na souvisejicí judikáty: Corresponding Judgements:		Case 205/84 Commission v Germany [1986] ECR 3755


	Plný text: Fulltext:		Ne

Fakta:
Mr Bachmann, a German national was employed in Belgium. He paid contributions to sickness and invalidity insurance contracts and a life insurance contract concluded prior to his arrival in Belgium. The Directeur des Contributions Directes (Director of Direct Taxation) refused to allow the deduction from his total occupational income for 1973 to 1976 of those contributions. He relied upon a provision of the Belgian Income Tax Code according to which only voluntary sickness and invalidity contributions paid to a mutual insurance company recognized by Belgium and pension and life insurance contributions paid in Belgium may be deducted from occupational income.
Mr Bachmann brought an action against said decision. Upon appeal, the Cour de Cassation under Article 177 of the Treaty referred to the Court of Justice (as restated by the Court): whether Articles 48, 59, 67 and 106 of the Treaty are to be interpreted as precluding the legislation of a Member State from restricting the deductibility of sickness and invalidity insurance contributions and pension and life insurance contributions to contributions paid in that State.

Názor soudu a komentář:
The Court finds that there is a risk that the provisions in question may operate to the particular detriment of workers nationals of other Member States because they will normally have concluded their pension and life assurance contracts or invalidity and sickness insurance contracts with insurers established in their home Member State. The provision in question, in other words, while being facially neutral, appears to be covertly discriminatory on the basis of nationality. The Court therefore goes on to examine whether such regulation can be justified. A number of Member States had submitted observations to the Court in the present proceedings, urging that the Belgian regulation in question ought to be considered justified. The Court thoroughly examines the various arguments brought forward.
First, it had been argued that the obstacle to free movement resulted from a lack of harmonization rather than from the Belgian tax legislation. The Belgian law was consistent in so far as it did not allow deduction of the contribution but on the other hand did not treat the corresponding pensions as taxable income either. The Court rejects that argument: “Whilst this situation results from the absence of harmonization of fiscal laws of the Member States, such harmonization cannot constitute a condition precedent to the application of Article 48.” In regard to invalidity and sickness insurance, the argument was made that migrant workers could easily bring such contracts to an end and conclude new contracts in the Member State of employment. Such a requirement, however, would in itself constitute a restriction to the workers freedom of movement and therefore cannot be accepted as a justification under Article 48.
With regard to consumer protection it was further pointed out that the Court had in Case 205/84 () recognized that the Member States could, for the purpose of consumer protection, make the conclusion of insurance contracts with an insurer based in another Member State conditional on prior authorization; consequently, it should also be accepted that Member States refuse to give tax advantages if the insurer has not been authorized. The Court does not follow this reasoning, arguing that once the insurance contract has been concluded with an insurer established in another Member State at the time when the policy-holder was resident, the object of consumer protection could no longer be invoked as a ground for refusing to recognize the existence of the contract.
Neither does the Court accept the argument that it would be impossible for the national tax authorities to check the validity of certificates relating to the payment of contributions in other Member States. Firstly, the Member State of residence may, under Council Directive 77/799/EEC
Of 19 December 1977 concerning mutual assistance by the competent authorities of the Member States in the field of direct taxation (OJ 1977 L 336, p. 15).
, ask the Member State where the insurer is established for assistance. Secondly, even in so far, as the possibility to require assistance is, under its Article 8(1) of the Directive, limited, the tax authorities could demand from the person concerned such proof as it considers necessary and, where appropriate, refuse to allow deduction where such proof is not forthcoming. Such individual assessment would be a less restrictive means.
The Court accepts, however, that the provisions in issue are justified on the ground that they are necessary in order to preserve the cohesion of the tax system. The Belgian Income Tax Law establishes a connection between the deductibility of contributions and the liability to pay tax of sums payable by the insurers under pension life assurance contracts. The loss of revenue resulting from the deduction of life assurance contributions from the total taxable income is offset by the taxation of pensions, annuities or capital sums payable by the insurers. “The cohesion of such a tax system, the formulation of which is a matter for each Member State, therefore presupposes that, in the event of a State being obliged to allow deduction of life assurance contributions paid in another Member State is should be able to tax sums payable by insurers.” Upon further examination the Court concludes “that, as Community law stands at present, it is not possible to ensure the cohesion of such tax system by means of measures which are less restrictive than those at issue in the main proceedings, and that the consequences of any other measure ensuring the recovery by the State concerned of the tax due under its legislation on sums payable by insurers pursuant to the contracts concluded with them would ultimately be similar to those resulting from the non-deductibility of contributions.”
The Court thus accepts a justification on restrictions to the freedom of movement of persons outside the public policy clause of Article 48(3) of the Treaty. Such restrictions are justified if they are necessary in order to preserve the cohesion of the tax system, it being understood that the measure must constitute the least intrusive means.
The Belgian legislation at issue likewise constitutes a restriction on the freedom to provide services established by Article 59 of the Treaty because the requirement that an insurer has to be established in a Member State as a condition of the eligibility of insured persons to benefit from tax deductions in that State hinders the insurers freedom to provide services. This restriction is, however, justified as is the restriction to the free movement of persons.
With respect to Articles 67 and 106, the Court points out that “Article 67 does not prohibit restrictions which do not relate to the movement of capital but which result indirectly from restrictions on other fundamental freedoms and,, secondly, that provisions such as those at issue before the national court preclude neither the payment of insurance contributions to insurers established in another Member State nor their payment in the currency of the Member State in which the insurer is established

Shrnutí (Summary of the Judgment):
LEGISLATION OF A MEMBER STATE WHICH MAKES THE DEDUCTIBILITY OF SICKNESS AND INVALIDITY INSURANCE CONTRIBUTIONS OR PENSION AND LIFE ASSURANCE CONTRIBUTIONS CONDITIONAL ON THOSE CONTRIBUTIONS BEING PAID IN THAT STATE IS CONTRARY TO ARTICLES 48 AND 59 OF THE TREATY. HOWEVER, THAT CONDITION MAY BE JUSTIFIED BY THE NEED TO SAFEGUARD THE COHESION OF THE APPLICABLE TAX SYSTEM. THAT NEED MAY EXIST, FOR EXAMPLE, WHERE THE TAX SYSTEM OF A MEMBER STATE IS SUCH THAT THE DEDUCTIBILITY OF THE CONTRIBUTIONS IS OFFSET BY THE TAXATION OF PAYMENTS MADE BY INSURERS PURSUANT TO THE CONTRACTS, AND VICE VERSA, AND WHERE IT WOULD BE IMPOSSIBLE TO ENSURE THAT THE DEDUCTIONS WERE OFFSET BY SUBSEQUENT TAXATION OF PAYMENTS BECAUSE PAYMENTS ARISING FROM THE DEDUCTIBLE CONTRIBUTIONS WERE MADE BY A FOREIGN INSURER ESTABLISHED IN ANOTHER COUNTRY WHERE THERE WOULD BE NO CERTAINTY OF SUBJECTING THEM TO TAX. SUCH LEGISLATION IS NOT INCOMPATIBLE WITH ARTICLES 67 AND 106 OF THE TREATY.

Plný text judikátu (Entire text of the Judgment):