Opinion of the Advocate General — ECLI:EU:C:2006:481
Date: 2006-07-13
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Right of establishment
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the Judgment Freedom of movement for persons – Freedom of establishment – Tax provisions (EC Treaty, Art. 52 (now, after amendment, Art. 43 EC)) Article 52 of the EC Treaty (now, after amendment, Article 43 EC) precludes a resident taxpayer from being refused, by the Member State of his residence, joint assessment to income tax with his spouse from whom he is not separated and who lives in another Member State, on the ground that that spouse received in that Member State both more than 10% of the household’s income and more than a certain ceiling, where the income received by that spouse in the second Member State is not there subject to income tax. A resident taxpayer whose spouse is resident in the same Member State and receives there only income not subject to tax is objectively in the same situation as a resident taxpayer whose spouse is resident in another Member State and receives there only income not subject to tax because, in both cases, the household’s taxable income is derived from the professional activity of only one of the spouses and, in both cases, that spouse is the resident taxpayer. The State of residence of such a taxpayer is the only State which can take account of the taxpayer’s personal and family circumstances, since he is not only resident in that State but, additionally, receives the entire taxable income of the household there. (see paras 26, 29, 31-32, operative part)