Brussels, 18 September 2008
Direct taxes: the Commission refers Portugal to the Court of Justice for its discriminatory tax provision against non-Portuguese service providers
The European Commission has decided to refer Portugal to the Court of Justice for its discriminatory tax rules according to which non-resident entities providing services in Portugal are subject to a withholding tax based on the gross amount of their income, whereas domestic providers are taxed only on their net profits. The Commission considers that these rules are incompatible with the EC Treaty, which guarantees the free provision of services.
According to Portuguese rules non-resident services providers are subject to a final Portuguese withholding tax on the gross amount of their income, whereas domestic providers would be taxed only on their net profits, i.e. after deduction of related costs.
In the view of the Commission this legislation is likely to dissuade foreign services providers from providing services in Portugal, and might dissuade Portuguese clients from buying services from foreign providers, and therefore constitutes an infringement of Article 49 of the EC Treaty (freedom to provide services).
Portugal notes that taxation on the basis of gross income does not apply to service providers resident in Member States with whom Portugal has signed a Double Tax Convention (all Member States except Cyprus). In addition, Portugal remarks that in the case of taxation on the gross income the difference in the tax base might be offset by the difference between the rate applicable to resident entities 25 % and the final withholding tax rate 15 % applied to non-resident entities. The Portuguese Government also claims that the measures are necessary to combat tax fraud.
However, the Commission considers that there is discrimination to foreign services providers established in Cyprus which has not signed a Double Tax Convention with Portugal. The Commission is of the view that discrimination exists when it cannot be ensured that differences in the level of taxation due to the differences in the tax bases are always offset by the differences in the tax rates. It also regards the chosen measures as disproportionate since there are other methods of preventing fraud, for example by requiring the service provider to give information or by mutual assistance and information exchange with other EU Member States under EU Directive 77/799/EEC and by mutual assistance in the recovery of claims under EU Directive 2001/44/EC.
The Commission's case reference number is 2005/4153.
For the latest general information on infringement measures against Member States see: