Judgment;Summary — ECLI:EU:C:2020:338
Date: 2020-04-30
Language of the case: Italian
Court formation: Eighth Chamber
Subject matter: Citizenship of the Union;Right of entry and residence;Anti-discrimination;Non-discrimination on grounds of nationality
Procedure: Reference for a preliminary ruling
Origin: Italy

Anonymised version 
Translation  C-168/19 — 1 
Case C-168/19 
Request for a preliminary ruling 
Date lodged: 
25 February 2019 
Referring court: 
Corte dei Conti — Sezione Giurisdizionale per la Regione Puglia 
(Italy) 
Date of the decision to refer: 
10 July 2018 
Applicant:  
HB 
Defendant: 
Istituto Nazionale della Previdenza Sociale 
      
ITALIAN REPUBLIC 
LA CORTE DEI CONTI (COURT OF AUDITORS)  
 Ord. 125/2018 
Judicial Division for the Region of Apulia 
[...], 
has made the following 
ORDER 
in the proceedings [...] brought by HB [...] against the Istituto Nazionale della 
Previdenza Sociale (I.N.P.D.A.P.), [...]. 
EN 
REQUEST FOR A PRELIMINARY RULING OF 10. 7. 2018 — CASE C-168/19 
 
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1. MAIN PROCEEDINGS 
By application notified to the Istituto Nazionale della Previdenza Sociale 
(National Social Welfare Institute) on 21 July 2017, Mr HB brought proceedings 
against that institute in which he sought a declaration that he was entitled to 
payment of his pension in Portugal before deduction of Italian taxes. 
The applicant, who is the beneficiary of a pension previously administered by the 
Istituto Nazionale di Previdenza e Assistenza per i dipendenti 
dell’Amministrazione Pubblica (National Social Welfare Institute for Public 
Officials) (I.N.P.D.A.P.), with registration No 17130153, the award of which 
started as from 1 August 2007, transferred his residence to Portugal and informed 
the Istituto Nazionale della Previdenza Sociale, by registered letter of 
16 December 2015, of his wish to receive his pension on a monthly basis without 
any deduction of Italian taxes, pursuant to Articles 18 and 19(2) of L. 10 luglio 
1982, n.562 (Law No 562 of 10 July 1982) which ratified the Convention between 
the Italian Republic and the Republic of Portugal on the avoidance of double 
taxation and the prevention of tax evasion in the field of income tax. 
The Istituto Nazionale della Previdenza Sociale refused the applicant’s request 
and, by a decision dated 23 December 2015, stated that pensioners in receipt of an 
Italian public sector pension ‘are excluded from the possibility of benefiting from 
tax advantages in Portugal by Article 19 of the Convention itself. Exemption from 
tax is available to all Italian pensioners in receipt of a private sector pension.’ 
The Istituto Nazionale della Previdenza Sociale entered an appearance on 7 April 
2017 by filing a defence, accompanied by an administrative report, in which the 
merits of the application of the applicant are disputed, on the ground that ‘whereas 
for pensioners who are former private sector employees [Or. 2] the only 
requirement for the award of a pension before deduction is residence, pensioners 
who are former public sector employees may obtain exemption from Italian taxes 
only if they acquire the nationality of another country’. 
2. NATIONAL LAW 
The legal provisions which are applicable in the present case are the following.  
- Law No 562 of 10 July 1982 (Gazzetta Ufficiale Serie Generale (Official 
Journal, General Series) No 224 of 16 August 1982)) 
ARTICLE 18 (Pensions) 
ISTITUTO NAZIONALE DELLA PREVIDENZA SOCIALE 
 
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Subject to Article 19(2), pensions and other similar remuneration paid to a 
resident of a contracting State in consideration of past employment shall be 
taxable only in that State. 
Article 19 (Public sector) 
2. (a) The pensions paid by a contracting State, by one of the political or 
administrative subdivisions of that State or by one of its local authorities, whether 
directly or from funds set up by them, to a natural person in respect of services 
provided to that State or local authority, shall be taxable in that State only. 
3. SUCCINCT PRESENTATION OF THE GROUNDS FOR THE 
REQUEST FOR A PRELIMINARY RULING 
The facts relevant to the adjudication of the case before the court in the main 
proceedings come within the scope of EU law because, even though direct 
taxation falls within their competence, the Member States must exercise that 
competence in a manner consistent with EU law, as already stated by the Court of 
Justice of the European Union (see, most recently, the judgment of 19 November 
2015, Hirvonen, C-632/13, EU:C:2015:765, paragraph 28 and the case-law cited). 
The fiscal competence of the Member States in the field of direct taxation — even 
though that competence is the expression of national sovereignty and does not 
come within the exclusive competence of the [European Union] — must be 
exercised in compliance with the fundamental freedoms laid down by the Treaty, 
on which [Or. 3] the establishment and functioning of the internal market are 
based. This implies the existence of a potential link between any national tax law 
and any directly applicable provision of the Treaty, resulting in a general 
limitation on the fiscal sovereignty of individual Member States in the field of 
direct taxation and, in particular, compliance with Article 21 TFEU, which is the 
provision of the FEU Treaty to which reference should be made in the present 
case. 
The EU Court of Justice has stated (judgment of 19 November 2015, Hirvonen, 
C-632/13, EU:C:2015:765) that pensioners who leave the Member State in which 
they have spent all their working life in order to reside in another Member State 
may, in cases where their situation is not covered by the freedom of movement 
guaranteed by Article 45 TFEU, invoke the right to free movement as a citizen of 
the European Union under Article 21 TFEU (see, to that effect, judgment of 
9 November 2006, Turpeinen, C-520/04, EU:C:2006:703, paragraphs 16 to 23). 
It is clear that the Italian legislation at issue in the main proceedings introduces 
inequality of treatment between, on the one hand, Italian pensioners in receipt of a 
private sector pension who are resident in Portugal and, on the other, Italian 
pensioners in receipt of a public sector pension who are also resident in Portugal, 
resulting in differing tax treatment which is more advantageous for the former 
REQUEST FOR A PRELIMINARY RULING OF 10. 7. 2018 — CASE C-168/19 
 
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group of Italian pensioners and less advantageous for the latter group; such 
treatment amounts to an obstacle to free movement within the European Union. 
The Court of Justice of the European Union (judgment of 9 November 2006, 
Turpeinen, C-520/04, EU:C:2006:703) has held that ‘[n]ational legislation which 
places some of its nationals at a disadvantage simply because they have exercised 
their freedom to move and to reside in another Member State would give rise to 
inequality of treatment, contrary to the principles which underpin the status of 
citizen of the Union, that is, the guarantee of the same treatment in law in the 
exercise of the citizen’s freedom to move’ (paragraph 22). The disadvantage is, in 
the present case, only indirect, in that it relates to different tax treatment of the 
pensions of former private sector employees in comparison with those of former 
public sector employees. 
Moreover, the differing tax treatment of the pensions of Italian citizens who 
transfer their residence to Portugal, depending on whether they are former public 
sector employees or former private sector employees, amounts to discrimination 
on grounds of nationality, which is prohibited by Article 18 TFEU, in that former 
private sector employees are merely required to be resident there, whereas former 
public sector employees must have acquired Portuguese nationality.  
In general terms, the principle of non-discrimination requires that comparable 
situations should not be treated differently and that different situations should not 
be treated in the same way unless such treatment is objectively justified. 
The Court of Justice has made it clear that the principle of equal treatment 
prohibits not only direct or overt discrimination but also indirect [Or. 4] or covert 
discrimination which, although based on different distinguishing criteria, leads in 
fact to the same result. 
The question to be referred to the Court of Justice for a preliminary ruling can 
therefore be worded as follows: ‘Must Articles 18 TFEU and 21 TFEU be 
interpreted as precluding legislation of a Member State which provides for the 
taxation, in that Member State, of the income of a person resident in another 
Member State who receives all of his income from the first Member State but who 
does not hold the nationality of the second Member State, without the benefit of 
the tax advantages provided by that second Member State?’ 
ON THOSE GROUNDS 
[...] 
The present proceedings are stayed until the Court of Justice of the European 
Union has given a ruling. 
[...] Bari [...] 10 July 2018 [...] 
[...]