Opinion of the Advocate General — ECLI:EU:C:2016:638
Date: 2016-09-07
Language of the case: Dutch
Subject matter: Right of establishment;Taxation;Free movement of workers
Procedure: Reference for a preliminary ruling;Reference for a preliminary ruling - inadmissible
Origin: Netherlands

Summary — Judgment of the Court (First Chamber), 9 February 2017 Freedom of movement for persons — Freedom of establishment — Equal treatment — Direct taxation — Income tax — National of a Member State receiving the greater part of his income in the territory of that Member State and residing in the territory of another Member State but receiving no income there — Legislation of the former Member State which permits the deduction of ‘negative income’ relating to a dwelling, but refusing the benefit of that deduction to that national — Not permissible— Concept of Member State of activity — Part of income received in the territory a non-Member State — Irrelevant (Art. 49 TFEU) Article 49 TFEU must be interpreted as precluding a Member State, the tax legislation of which permits the deduction of ‘negative income’ relating to a dwelling, from refusing the benefit of that deduction to a self-employed non-resident where that person receives, within that Member State, 60% of his total income and does not receive, within the Member State where his dwelling is located, income that enables him to qualify for an equivalent right to deduct. Where the non-resident receives, within a Member State where he performs some of his activities, 60% of his total global income, it cannot be inferred that, for that reason alone, the Member State where he is resident will not be in a position to take account of his aggregate income and his personal and family circumstances. It would be otherwise only if it were established that the person concerned received, within the Member State where he was resident, either no income or income of so modest an amount that that State would not be able to grant him the advantages that would accrue from account being taken of his aggregate income and his personal and family circumstances. The injunction imposed by the answer to the first question concerns any Member State of activity within which a self-employed person receives income enabling him to claim there an equivalent right of deduction, in proportion to the share of that income received within each Member State of activity. In that regard, a ‘Member State of activity’ is any Member State that has the power to tax such income from the activities of a non-resident as is received within its territory, irrespective of where the activities are actually performed. The fact that the non-resident taxpayer concerned receives part of his taxable income not within a Member State, but within a non-Member State, is of no relevance to the answer to the second question. (see paras 39, 43, 49, 52, operative part 1-3)