Opinion of the Advocate General — ECLI:EU:C:2006:357
Date: 2006-06-01
Language of the case: Danish
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Right of establishment;Freedom to provide services;Free movement of workers
Procedure: Action for failure to fulfil obligations - successful
Origin: Denmark

Summary of the Judgment Freedom of movement for persons – Workers – Freedom of establishment – Freedom to provide services – Restrictions – Tax provisions (Arts 39 EC, 43 EC and 49 EC) A Member State which provides that the rights to deduct or to omit from taxable income contributions paid to a pension scheme are granted only for payments under contracts entered into with pension institutions established in national territory, whereas no such tax relief is granted for payments made under contracts entered into with pension institutions established in other Member States, fails to fulfil its obligations under Articles 39 EC, 43 EC and 49 EC. By refusing in general to grant a tax advantage in respect of contributions paid to a pension institution established in another Member State, such legislation cannot be justified by the need to guarantee the coherence of the national tax system since the factor liable adversely to affect the latter is to be found in the fact that the transfer of the taxpayer’s residence occurs between the time of payment of contributions to a pension scheme and that of payment of the corresponding benefits, that Member State being deprived only in that case of the power to tax the benefits corresponding to the contributions deducted or exempted. Since the provisions of the Treaty on freedom to provide services, freedom of movement for workers and freedom of establishment preclude the contested legislation, it is not necessary to consider that legislation separately in the light of Article 56 EC on free movement of capital. (see paras 64, 71-74, 76, operative part)