IP/09/288

Brussels, 19 February 2009

Direct taxation: The European Commission refers Portugal to the European Court of Justice over discriminatory taxation of non-resident taxpayers

The European Commission has decided to refer Portugal to the European Court of Justice for its tax provisions which oblige non-resident taxpayers to appoint a fiscal representative if they obtain taxable income in Portugal. The Commission considers the provision incompatible with the free movement of persons and the free movement of capital as guaranteed by Articles 18 and 56 of the EC Treaty and Articles 36 and 40 of the EEA Agreement.

Under Portuguese Law^[1], non-resident taxpayers who obtain taxable income in Portugal have to appoint a fiscal representative to represent them before the Portuguese tax authorities and to guarantee the fulfilment of their fiscal duties. The Commission understands that the aim of this requirement is to guarantee payment of taxes and prevent tax evasion. These are recognised requirements of public interest.  However, the Commission is of the opinion that a general obligation imposed on non-residents to appoint a fiscal representative goes beyond what is necessary to ensure these objectives and thus impedes the free movement of persons and the free movement of capital as laid down in Articles 18 and 56 of the EC Treaty and in the EEA-Agreement.

The Commission's opinion is based on the EC Treaty as interpreted by the Court of Justice of the European Communities in its judgment of 7 September 2006 in case C-470/04, N,.

Portugal did not reply to the reasoned opinion sent by the European Commission in June 2008 (see IP/08/1024) nor has it modified its legislation.

The Commission's case reference number is 2006/5036.

For the press releases issued on infringement procedures in the taxation or customs area see:

http://ec.europa.eu/taxation_customs/common/infringements/infringement_cases/index_en.htm

For the latest general information on infringement measures against Member States see:

http://ec.europa.eu/community_law/index_en.htm

^[1] Article 130 of the CIRS (Código do Imposto sobre o rendimiento das pessoas singulares, Tax Law on the income of natural persons)