Case C-39/04

Laboratoires Fournier SA

v

Direction des vérifications nationales et internationales

(Reference for a preliminary ruling from the Tribunal administratif de Dijon)

(Restrictions on the freedom to provide services – Tax legislation – Corporation tax – Tax credit for research)

Opinion of Advocate General Jacobs delivered on 9 December 2004

Judgment of the Court (Third Chamber), 10 March 2005

Summary of the Judgment

Freedom to provide services – Restrictions – Tax legislation – Corporation tax – National legislation restricting the benefit of a tax credit for research to research carried out in that Member State – Not permissible – Justification – None

(Art. 49 EC)

Article 49 EC precludes legislation of a Member State which restricts the benefit of a tax credit for research only to research carried out in that Member State.

Such legislation is, albeit indirectly, based upon the place of establishment of the provider of services and is consequently liable to restrict its cross-border activities. It cannot be justified by the need to safeguard the coherence of the tax system, to promote research or to ensure effective fiscal supervision.

(see paras 18, 20, 23-24, 26, operative part)

JUDGMENT OF THE COURT (Third Chamber) 10 March 2005 (1)

(Restrictions on the freedom to provide services – Tax legislation – Corporation tax – Tax credit for research)

In Case C-39/04,REFERENCE for a preliminary ruling under Article 234 EC, from the Tribunal administratif, Dijon (France), made by decision of 30 December 2003, received at the Court on 2 February 2004, in the proceedings

v

THE COURT (Third Chamber),,

composed of A. Rosas, President of the Chamber, J.-P. Puissochet, S. von Bahr (Rapporteur), J. Malenovský and U. Lõhmus, Judges,

Advocate General: F.G. Jacobs,

having regard to the written procedure and further to the hearing on 28 October 2004,after considering the observations submitted on behalf of:

after hearing the Opinion of the Advocate General at the sitting on 9 December 2004,

gives the following

‘Expenditure relating to activities carried out in France gives rise to entitlement to the tax credit mentioned in Article 244(c)B of the Code général des impôts.’

‘Are the provisions mentioned in Article 244(c)B of the Code général des impôts and in Article 49(g)H of Annex III to the said code, in so far as they restrict the benefit of the tax credit for research to research activities performed in France, contrary to the provisions of Article 49 [EC]?

If the answer to that question is in the affirmative, is the condition that the research activities be performed in France laid down by those tax provisions partaking of the principle of coherence of corporation tax and thus allowing restriction of the requirements of Article 49 [EC]?’

On those grounds, the Court (Third Chamber) rules as follows:

[Signatures]