Opinion of the Advocate General — ECLI:EU:C:2010:761
Date: 2010-12-09
Language of the case: German
Subject matter: Anti-discrimination;Non-discrimination on grounds of nationality
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the Judgment 1. Preliminary rulings – Admissibility – Need to provide the Court with sufficient information on the factual and legislative context – Scope and limits (Art. 267 TFEU; Statute of the Court of Justice, Art. 23) 2. Free movement of capital – Restrictions – Tax legislation – Income tax – Rental income (Art. 63 TFEU) 1. In view of the division of responsibilities between the national courts and the Court of Justice on which the procedure referred to in Article 267 TFEU is based, the referring court cannot be required to make all the findings of fact and of law required by its judicial function before it may bring the matter before the Court. It is sufficient that both the subject-matter of the dispute in the main proceedings and the main issues raised for the European Union legal order may be understood from the reference for a preliminary ruling, in order to enable the Member States to submit their observations in accordance with Article 23 of the Statute of the Court of Justice and to participate effectively in the proceedings before the Court. (see para. 19) 2. Article 63 TFEU must be interpreted as precluding legislation of a Member State which, while allowing a resident taxpayer to deduct the annuities paid to a relative who transferred to him immovable property situated in the territory of that State from the rental income derived from that property, does not grant such a deduction to a non-resident taxpayer, in so far as the undertaking to pay those annuities results from the transfer of that property. To the extent that a non-resident taxpayer’s undertaking to pay the annuity to his relative results from the transfer to him of immovable property situated in the Member State concerned – that being a matter for the referring court to establish – that annuity constitutes an expense directly linked to the use of that property, with the result that that individual is in that regard in a situation comparable to that of a resident taxpayer. In those circumstances, national provisions which, in matters of income tax, deny non-residents the right to deduct such an expense, while that right is, by contrast, granted to residents, is, in the absence of valid justification, contrary to Article 63 TFEU. (see paras 46-47, 49, operative part)