# C_2009267EN.01000902.xml

| 7.11.2009 | EN | Official Journal of the European Union | C 267/9 |
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7.11.2009

EN

Official Journal of the European Union

C 267/9

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Judgment of the Court (Second Chamber) of 10 September 2009 — Commission of the European Communities v Federal Republic of Germany

(Case C-269/07) (1)

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(Failure of a Member State to fulfil obligations - Freedom of movement for workers - Regulation (EEC) No 1612/68 - Savings-pension bonus - Full liability to tax)

2009/C 267/16

Language of the case: German

Parties

Parties

Applicant: Commission of the European Communities (represented by: R. Lyal and W. Mölls, Agents)

Applicant:

Defendant: Federal Republic of Germany (represented by: C. Blaschke and M. Lumma, Agents, W. Wellisch, Rechtsanwalt)

Defendant:

Re:

Re:

Failure of Member State to fulfil obligations — Infringement of Articles 12 EC, 18 EC and 39 EC, and of Article 7 of Council Regulation (EEC) No 1612/68 of 15 October 1968 on freedom of movement for workers within the Community (OJ, English Special Edition I 1968(II), p. 475) — National legislation concerning incentive allowances for savings pensions, the grant of which is conditional upon full liability to taxation in the Member State, providing for the repayment of the allowance on termination of such liability and prohibiting the use of capital accrued in accordance with such a scheme for the acquisition of residential property occupied by the owner unless the property is situated within the territory of that Member State.

Operative part of the judgment

Operative part of the judgment

The Court:

| 1. | Declares that, by introducing and maintaining the provisions for complementary pensions in Paragraphs 79 to 99 of the Federal Law on Income Tax (Einkommensteuergesetz), the Federal Republic of Germany has failed to fulfil its obligations under Article 39 EC and Article 7(2) of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community and Article 18 EC, in so far as those provisions:






  — | deny cross-border workers and their spouses the right to the savings pension bonus, unless they are fully liable to tax in that Member State; |
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1.

Declares that, by introducing and maintaining the provisions for complementary pensions in Paragraphs 79 to 99 of the Federal Law on Income Tax (Einkommensteuergesetz), the Federal Republic of Germany has failed to fulfil its obligations under Article 39 EC and Article 7(2) of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community and Article 18 EC, in so far as those provisions:

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deny cross-border workers and their spouses the right to the savings pension bonus, unless they are fully liable to tax in that Member State;

| — | prohibit cross-border workers from using the subsidised capital for the acquisition or construction of an owner-occupied dwelling unless the property is situated in Germany, and |
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prohibit cross-border workers from using the subsidised capital for the acquisition or construction of an owner-occupied dwelling unless the property is situated in Germany, and

| — | provide that the bonus be reimbursed on termination of full liability to tax in that Member State; |
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provide that the bonus be reimbursed on termination of full liability to tax in that Member State;

| 2. | Orders the Federal Republic of Germany to pay the costs. |
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2.

Orders the Federal Republic of Germany to pay the costs.

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(1)  OJ C 199, 25.8.2007.

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