Opinion of Advocate General Mengozzi in the case Picart on the freedom of establishment.
The right of establishment of a self-employed person, as laid down in Articles 1 and 4 of the Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons (AFMP), signed in Luxembourg on 21 June 1999, and in Article 12(1) and Article 15(1) of Annex I to that agreement, must be interpreted as meaning that it extends only to a natural person wishing to pursue, or pursuing, a self-employed activity on the territory of a Contracting Party other than that of which he is a national, and on which he must be treated in the same way as a national of that State, that is to say, any overt or covert discriminatory measure on grounds of nationality must be prohibited. On the basis of the information provided by the referring court, the plaintiff in the main proceedings does not appear to fall within the scope of those terms of the agreement.
Should the Court not support the foregoing analysis and answer, and should it consider that the scope of the terms of the AFMP relating to the right of establishment of self-employed persons, like the provisions of Article 43 EC, now Article 49 TFEU, extended to any obstacle imposed by a Contracting Party to the establishment of its nationals on the territory of another Contracting Party on the basis, in particular, of reasoning influenced by that followed in the judgments of 11 March 2004, de Lasteyrie du Saillant (C‑9/02, EU:C:2004:138), and of 7 September 2006, N (C‑470/04, EU:C:2006:525), it would then in the view of Mengozzi have to provide indications to the referring court relating to the proportionate nature of a measure involving the taxation of unrealised capital gains, such as that provided for in Article 167 bis of the GTC when a French taxpayer transfers his tax residence to Switzerland. Mengozzi shall address that point.
Having regard to the circumstances of the main proceedings, to the unequivocal case-law of the Court analysed concerning the application of the principle of proportionality to the ‘exit' taxation of unrealised capital gains and also to the Contracting Parties' intention, as expressed in the third sentence of Article 16(2) of the AFMP, Mengozzi therefore considers that the terms of the AFMP relating to the right of establishment of self-employed persons do not preclude a fiscal measure such as that provided for in Article 167 bis of the GTC.
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