«(Occupational endowment pension insurance – Policy taken out with a company in another Member State – Difference in tax treatment – Compatibility with Article 49 EC)»

Freedom to provide services – Restrictions – Tax legislation – Difference in treatment for occupational pension insurance taken out in another Member State – Not permissible (Art. 49 EC) Article 49 EC precludes an insurance policy issued by an insurance company established in another Member State which meets the conditions laid down in national law for occupational pension insurance, apart from the condition that the policy must be issued by an insurance company operating in the national territory, from being treated differently in terms of taxation, with income tax effects which, depending on the circumstances in the individual case, may be less favourable.see para. 62, operative part

JUDGMENT OF THE COURT (Fifth Chamber) 26 June 2003 (1)

((Occupational endowment pension insurance – Policy taken out with a company in another Member State – Difference in tax treatment – Compatibility with Article 49 EC))

In Case C-422/01,

REFERENCE to the Court under Article 234 EC by the Regeringsrätten (Sweden) for a preliminary ruling in the proceedings pending before that court between

and

on the interpretation of the EC Treaty and Article 49 EC in particular,

THE COURT (Fifth Chamber),,

composed of: M. Wathelet (Rapporteur), President of the Chamber, C.W.A. Timmermans, A. La Pergola, P. Jann and A. Rosas, Judges,

Advocate General: P. Léger,

after considering the written observations submitted on behalf of:

having regard to the Report for the Hearing,

after hearing the oral observations of Försäkringsaktiebolaget Skandia (publ) and Mr Ramstedt, represented by J.-M. Bexhed, of the Riksskatteverket, represented by G. Bäck, acting as Agent, of the Swedish Government, represented by A. Kruse and K. Wistrand, acting as Agents, of the Commission, represented by C. Tufvesson and R. Lyal, and of the EFTA Surveillance Authority, represented by E. Wright and by P.A. Bjørgan, at the hearing on 30 January 2003,

after hearing the Opinion of the Advocate General at the sitting on 3 April 2003,

gives the following

The legislation at issue

(a)the insurance chiefly relates to an old-age, invalidity or survivor's pension and the taxable person was resident abroad when the contract was entered into, in a country whose tax system allows a right to deduct, a tax reduction or other tax relief, or

(b)the employer paid premiums for such insurance during the insured's period of residence or gainful employment abroad without that payment being deemed income of the insured for the purposes of taxation in that country, or

Applicability of Treaty provisions relating to freedom to provide services

Restriction on freedom to provide services

Justification relied on

Fiscal cohesion

The effectiveness of fiscal controls

The need to preserve the tax base

Competitive neutrality

Free movement of persons and capital

Article 12 EC

On those grounds,

THE COURT (Fifth Chamber),

in answer to the question referred to it by the Regeringsrätten (Sweden) by order of 23 October 2001, hereby rules:

Wathelet

Timmermans

La Pergola

Jann

Rosas

Delivered in open court in Luxembourg on 26 June 2003.

R. Grass

M. Wathelet

Registrar

President of the Fifth Chamber