Judgment — ECLI:EU:C:2018:856
Date: 2018-10-24
Language of the case: French
Court formation: Sixth Chamber
Subject matter: Free movement of workers
Procedure: Reference for a preliminary ruling
Origin: Belgium

Summary — Judgment of the Court (Sixth Chamber), 24 October 2018 Freedom of movement for persons — Workers — Equal treatment — Remuneration — Income tax — Bilateral convention for the prevention of double taxation — National tax scheme under that convention exempting the income of a resident which arises in another Member State and relates to salaried employment in that State only if the activity is actually performed in that State — Lawfulness (Art. 45 TFEU) Article 45 TFEU must be interpreted as not precluding a tax scheme of a Member State under a tax convention for the purpose of preventing double taxation, such as that at issue in the main proceedings, which makes the exemption of the income of a resident which arises in another Member State and relates to salaried employment in that State subject to the condition that the activity in respect of which the income is paid is actually performed in that State. First, as has been stated in paragraph 22 of the present judgment, as the Member States are free to determine connecting factors for the purposes of allocating their powers of taxation, the mere fact that it has been decided to make the power to levy tax of the State in which the income is received dependent on the physical presence of a salaried resident on the territory of that State does not constitute discrimination or a difference in treatment prohibited by virtue of the free movement of workers (see, to that effect, judgment of 12 May 1998, Gilly, C‑336/96, EU:C:1998:221, paragraph 30). Secondly, the objective of an agreement on double taxation is to prevent the same income from being taxed in each of the two parties to that agreement; it is not to ensure that the tax to which the taxpayer is subject in one State is no higher than that to which he or she would be subject in the other contracting State (judgment of 19 November 2015, Bukovansky, C‑241/14, EU:C:2015:766, paragraph 44 and the case-law cited). (see paras 27, 28, 37, operative part)