Opinion of the Advocate General — ECLI:EU:C:1999:132
Date: 1999-03-11
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Taxation;Free movement of workers
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the Judgment 
Freedom of movement for persons — Workers — Equal treatment — Remuneration — 
Income tax — National legislation making tax benefits granted to resident married 
couples subject, in the case of non-resident couples, to a condition concerning income 
level — Whether permissible — Conditions 
(EC Treaty, Art. 48(2) (now, after amendment, Art. 39(2) EC)) 
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SUMMARY — CASE C-391/97 
Article 48(2) of the Treaty (now, after 
amendment, Article 39(2) EC) is to be 
interpreted as not precluding the applica­
tion of national legislation under which 
resident married couples are granted tax 
benefits while, in the case of non-resident 
couples, such benefits are subject to the 
condition that at least 90% of total income 
be subject to tax in that Member State, 
failing which, if that percentage is not 
reached, income from foreign sources and 
not subject to tax in that State must not 
exceed a certain ceiling, the possibility 
being thus maintained for account to be 
taken of the couple's personal and family 
circumstances in the State of residence. 
The fact that a Member State does not 
grant to a non-resident certain tax benefits 
which it grants to a resident is not, as a 
rule, discriminatory since, as regards direct 
taxation, those two categories of taxpayer 
are not in a comparable situation. Specifi­
cally, a non-resident married couple — one 
of whom works in the State of taxation in 
question and who may, owing to the 
existence of a sufficient tax base in the 
State of residence, have personal and family 
circumstances taken into account by its tax 
authorities — is not in a situation compar­
able to that of a resident married couple, 
even if one of the spouses works in another 
Member State. 
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