Opinion of the Advocate General — ECLI:EU:C:2004:663
Date: 2004-10-26
Language of the case: Dutch
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Free movement of capital
Procedure: Reference for a preliminary ruling
Origin: Netherlands

Summary of the Judgment 1. Free movement of capital — Restrictions — Tax legislation — Wealth tax — National legislation denying non-resident taxpayers entitlement to the allowances granted to resident taxpayers — Whether permissible — Condition (Arts 56 EC and 58 EC) 2. Free movement of capital — Restrictions — Bilateral double taxation convention —Personal allowances granted only to residents of the Member States which are parties to the convention — Whether permissible (Arts 56 EC and 58 EC) 1. Articles 56 EC and 58 EC do not preclude tax legislation imposing a wealth tax which denies non-resident taxpayers who hold the major part of their wealth in the State where they are resident entitlement to the allowances granted to resident taxpayers. Taxpayers who hold only a minor part of their wealth in a Member State other than the State where they are resident are not, as a rule, in a situation comparable to that of residents of that other Member State, inasmuch as not only the major part of the latters’ income but also the major part of their wealth is normally concentrated in the State where they are resident. That Member State is consequently best placed to take account of residents’ overall ability to pay by granting them, where appropriate, the allowances prescribed by its legislation. Accordingly, the refusal of the authorities concerned to grant non-residents the allowance to which residents are entitled does not discriminate against them. (see paras 37-38, 43, operative part 1) 2. Articles 56 EC and 58 EC do not preclude a rule laid down by a bilateral convention for the avoidance of double taxation which states that natural persons resident in one of the two States are entitled in the other to the personal allowances which are granted by it to its own residents from not being extended to residents of a Member State which is not party to that convention. The fact that the reciprocal rights and obligations flowing from such a convention apply only to persons resident in one of the two Contracting Member States is an inherent consequence of bilateral double taxation conventions. (see paras 60-61, 63, operative part 2)