# C_2021349EN.01001002.xml

| 30.8.2021 | EN | Official Journal of the European Union | C 349/10 |
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30.8.2021

EN

Official Journal of the European Union

C 349/10

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Judgment of the Court of 15 July 2021 (request for a preliminary ruling from the Tribunal de première instance du Luxembourg — Belgium) — BJ v Belgian State

(Case C-241/20) (1)

(Reference for a preliminary ruling - Freedom of movement for workers - Free movement of capital - Income tax - Legislation for the avoidance of double taxation - Income received in a Member State other than that of residence - Method of calculating the exemption in the Member State of residence - Loss of part of the benefit of certain tax advantages)

(2021/C 349/13)

Language of the case: French

Referring court

Tribunal de première instance du Luxembourg

Parties to the main proceedings

Applicant: BJ

Defendant: Belgian State

Operative part of the judgment

| 1. | Article 45 TFEU must be interpreted as precluding the application of tax legislation of a Member State that has the consequence that a taxpayer resident in that Member State forfeits, in connection with the calculation of the income tax payable by him or her in that Member State, a part of the benefit of the tax advantages granted by it, because that taxpayer receives income in respect of employment in another Member State, taxable in the latter and exempt from taxation in the first Member State pursuant to a bilateral convention for the avoidance of double taxation; |
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1.

Article 45 TFEU must be interpreted as precluding the application of tax legislation of a Member State that has the consequence that a taxpayer resident in that Member State forfeits, in connection with the calculation of the income tax payable by him or her in that Member State, a part of the benefit of the tax advantages granted by it, because that taxpayer receives income in respect of employment in another Member State, taxable in the latter and exempt from taxation in the first Member State pursuant to a bilateral convention for the avoidance of double taxation;

| 2. | The fact that the taxpayer concerned does not receive significant income in the Member State of residence is of no relevance to the answer to the first question referred since that Member State is in a position to grant him or her those tax advantages in question; |
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2.

The fact that the taxpayer concerned does not receive significant income in the Member State of residence is of no relevance to the answer to the first question referred since that Member State is in a position to grant him or her those tax advantages in question;

| 3. | The fact that, pursuant to a convention for the avoidance of double taxation between the Member State of residence and the Member State of employment, the taxpayer concerned has, in connection with the taxing of income that he or she received in the second Member State, enjoyed tax advantages under the tax legislation of it, is of no relevance to the answer to the first question referred, since neither that convention nor the tax legislation of the Member State of residence provide for those advantages to be taken into account and since the latter do not include some of the advantages to which the taxpayer is in principle entitled in the Member State of residence. |
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3.

The fact that, pursuant to a convention for the avoidance of double taxation between the Member State of residence and the Member State of employment, the taxpayer concerned has, in connection with the taxing of income that he or she received in the second Member State, enjoyed tax advantages under the tax legislation of it, is of no relevance to the answer to the first question referred, since neither that convention nor the tax legislation of the Member State of residence provide for those advantages to be taken into account and since the latter do not include some of the advantages to which the taxpayer is in principle entitled in the Member State of residence.

| 4. | The fact that, in the Member State of employment, the taxpayer concerned obtained a tax reduction in an amount at least equivalent to that of the tax advantages which he or she has lost in his Member State of residence is of no relevance to the answer to the first question referred. |
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4.

The fact that, in the Member State of employment, the taxpayer concerned obtained a tax reduction in an amount at least equivalent to that of the tax advantages which he or she has lost in his Member State of residence is of no relevance to the answer to the first question referred.

| 5. | Article 63(1) and Article 65(1)(a) TFEU must be interpreted as precluding the application of tax legislation of a Member State that has the consequence that a taxpayer resident in that Member State forfeits a part of the benefit of the tax advantages granted by it, because that taxpayer receives income deriving from an apartment of which he or she is the owner in another Member State, taxable in the latter and exempt from taxation in the first Member State pursuant to a bilateral convention for the avoidance of double taxation. |
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5.

Article 63(1) and Article 65(1)(a) TFEU must be interpreted as precluding the application of tax legislation of a Member State that has the consequence that a taxpayer resident in that Member State forfeits a part of the benefit of the tax advantages granted by it, because that taxpayer receives income deriving from an apartment of which he or she is the owner in another Member State, taxable in the latter and exempt from taxation in the first Member State pursuant to a bilateral convention for the avoidance of double taxation.

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(1)  OJ C 297, 07.09.2020.

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