Opinion of the Advocate General — ECLI:EU:C:2026:346
Date: 2026-04-23
Language of the case: German

Translation C-275/25 – 1 
Case C-275/25 [Kolwager] i 
Request for a preliminary ruling 
Date lodged: 
9 April 2025 
Referring court: 
Bundesfinanzhof (Germany) 
Date of the decision to refer: 
20 November 2024 
Defendant and appellant on a point of law: 
Finanzamt B 
Applicant and respondent on a point of law: 
A 
  
[…] 
BUNDESFINANZHOF (FEDERAL FISCAL COURT, GERMANY) 
ORDER 
In the case of 
Finanzamt B (Tax Office B, Germany), 
defendant and appellant on a point of law, 
v 
EIB – Servant A, 
applicant and respondent on a point of law, 
[…] 
 
i The name of the present case is a fictitious name. It does not correspond to the real name of any party to the proceedings. 
EN 
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on account of gift tax assessed in 2013 
the Second Chamber 
ordered as follows at the sitting of 20 November 2024: 
The following questions on the interpretation of the first sentence of the first 
paragraph of Article 13 of Protocol (No 7) on the privileges and immunities of the 
European Union (Official Journal of the European Union, 2012, No C 326, 266) 
are to be referred to the Court of Justice for a preliminary ruling: 
1. Does that provision apply to the levying of gift tax? 
2. If the first question referred is answered in the affirmative: Does that 
provision preclude an official or other servant of the Union who establishes his or 
her residence in the territory of a Member State other than his or her Member 
State of origin solely by reason of the performance of his or her duties in the 
service of the Union from establishing an additional domicile for tax purposes in a 
Member State other than the State in which he or she performs his or her duties if, 
at the same time, he or she retains an actual residence in the State in which he or 
she performs his or her duties? 
Grounds 
I. 
1 The applicant and respondent on a point of law (‘the applicant’) has, since … 
1995, been a servant of the European Investment Bank (EIB) in the Grand Duchy 
of Luxembourg (Luxembourg). Prior to his entry into the service of the EIB, he 
resided in the Republic of Austria (Austria). On … 1995, he moved from there 
to … in Luxembourg to take up his duties at the EIB. The applicant moved several 
times within Luxembourg, most recently to a dwelling in …. After marrying a 
servant of the EIB in 2010, he established a joint household with his wife at her 
house situated in K (Federal Republic of Germany; ‘Germany’). He continued to 
use his dwelling in Luxembourg. 
2 On 27 December 2013, the applicant received a bestowal of cash in the amount of 
EUR 300 000 from his brother residing in Austria, in exchange for which he 
provided no consideration. 
3 By notice of 13 April 2017, the defendant and appellant on a point of law 
(Finanzamt B, Germany; ‘the Tax Office’) imposed gift tax on the applicant in the 
amount of EUR 56 000. The administrative appeal lodged by the applicant, in 
which he claimed an entitlement, by virtue of the first sentence of the first 
paragraph of Article 13 of Protocol (No 7) on the privileges and immunities of the 
European Union (Official Journal of the European Union, 2012, No C 326, 266; 
‘the Protocol’), to be considered as having his residence (only) in Austria, was 
unsuccessful. In its administrative appeal decision of 1 August 2019, the Tax 
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Office found that the applicant had established an additional place of residence in 
K and was therefore subject to unlimited tax liability in Germany. According the 
Tax Office, the domicile for tax purposes in Germany existed in parallel to the 
fictitious domicile in Austria provided for under the first sentence of the first 
paragraph of Article 13 of the Protocol. 
4 By its judgment of 16 September 2021 – case ref. 4 K 1762/19 (Entscheidungen 
der Finanzgerichte 2022 (Decisions of the Finance Courts 2022), 520) – the 
Finanzgericht Rheinland-Pfalz (Finance Court, Rhineland-Palatinate, Germany) 
upheld the action brought by the applicant. When examining the ground for 
establishing residence referred to in the first sentence of the first paragraph of 
Article 13 of the Protocol (‘solely by reason of the performance of their duties in 
the service of the Union’), the Finance Court concluded that the date of entry into 
service was to be taken into account. Subsequent changes to the reasoning, in 
particular a move made for private reasons, were irrelevant as long as the servant 
remained employed by the Union and the actual residence had a geographical 
connection to the place of performance of the servant’s duties. 
5 By its appeal on a point of law, the Tax Office asserts that there has been an 
infringement of the first sentence of the first paragraph of Article 13 of the 
Protocol. It takes the view that that provision does not apply to gift tax. The Tax 
Office further asserts that the first sentence of the first paragraph of Article 13 of 
the Protocol is not relevant in the case at issue because it governs only the division 
of powers of taxation between the Member State in which the servant was 
domiciled for tax purposes before his or her entry into the service of the Union (in 
the present case, Austria) and the Member State in which he or she performs his or 
her duties (in the present case, Luxembourg). According to the Tax Office’s 
submissions, the situation in the present case – in which an additional residence 
was established, for private reasons, in a different Member State after 
commencement of the official duties – is not covered by that provision. 
6 The Tax Office claims that the referring court should: 
to set aside the judgment at first instance and dismiss the action at first instance. 
7 The applicant claims that the referring court should: 
to dismiss the appeal on a point of law as unfounded. 
II. 
8 The Chamber […] has stayed the proceedings in the appeal on a point of law that 
are pending before it […] and, pursuant to Article 267 TFEU, refers the questions 
on the interpretation of the first sentence of the first paragraph of Article 13 of the 
Protocol, as set out in the operative part of the present order, to the Court for a 
preliminary ruling. 
III. 
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9 Relevant legal provisions 
10 1. Provisions of European Union law relied on 
11 (a) Treaty on the Functioning of the European Union (OJ EU 2012, No C 326, 
194) 
12 Article 343 
‘The Union shall enjoy in the territories of the Member States such privileges and 
immunities as are necessary for the performance of its tasks, under the conditions 
laid down in the Protocol of 8 April 1965 on the privileges and immunities of the 
European Union. The same shall apply to the European Central Bank and the 
European Investment Bank.’ 
13 (b) Protocol (No 7) on the privileges and immunities of the European Union 
(OJ EU 2012, No C 326, 266) 
14 Article 13, first paragraph, first sentence 
‘In the application of income tax, wealth tax and death duties and in the 
application of conventions on the avoidance of double taxation concluded between 
Member States of the Union, officials and other servants of the Union who, solely 
by reason of the performance of their duties in the service of the Union, establish 
their residence in the territory of a Member State other than their country of 
domicile for tax purposes at the time of entering the service of the Union, shall be 
considered, both in the country of their actual residence and in the country of 
domicile for tax purposes, as having maintained their domicile in the latter 
country provided that it is a member of the Union.’ 
15 Article 21, first paragraph, first half-sentence 
‘This Protocol shall also apply to the European Investment Bank, to the members 
of its organs, to its staff and to the representatives of the Member States taking 
part in its activities, …’ 
16 (c) Treaty on European Union (‘TEU’) (OJ EU 2012, No C 326, 44) 
17 Article 51 
‘The Protocols and Annexes to the Treaties shall form an integral part thereof.’ 
18 2. Provisions of [German] national law relied on 
19 (a) The Erbschaftsteuer- und Schenkungsteuergesetz (Law on inheritance tax 
and gift tax; ‘ErbStG’) in the version published on 27 February 1997 
(Bundesgesetzblatt (‘BGBl’) – I 1997, 378), last amended by Article 30 of the 
Amtshilferichtlinie-Umsetzungsgesetz (Law on the implementation of the Mutual 
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Assistance Directive) of 26 June 2013 (BGBl I 2013, 1809, Bundessteuerblatt 
(Federal Tax Journal; ‘BStBl’) – I 2013, 802) 
20 Paragraph 1 – Taxable events 
‘(1) Inheritance tax (gift tax) shall apply to: 
1. transfers on death; 
2. gifts inter vivos; 
… 
(2) Unless provided otherwise, the provisions of the present Law relating to the 
transfer of assets on death shall apply also to gifts and restricted gifts, …’ 
21 Paragraph 2 – Personal liability to tax 
‘(1) Liability to tax arises: 
1. in the cases referred to in Paragraph 1(1), points 1 to 3, in relation to the 
entirety of the transferred assets (unlimited tax liability), where the deceased, on 
the date of death, the donor, on the date of making the gift, or the acquirer, on the 
date of the chargeable event (Paragraph 9), is a resident. The following persons 
are regarded as residents: (a) natural persons whose place of residence or habitual 
abode is in Germany; …’ 
22 Paragraph 7 – Gifts inter vivos 
‘(1) The following shall be deemed to be gifts inter vivos: 
1. any bestowal inter vivos made freely, in so far as the beneficiary is enriched 
by it at the expense of the person making the bestowal; …’ 
23 Paragraph 9 – Chargeability of tax 
‘(1) The tax shall become chargeable: 
1. in the case of transfers on death, on the death of the deceased, … 
2. in the case of gifts inter vivos, on the date of execution of the bestowal; …’ 
24 (b) Abgabenordnung (Fiscal Code; ‘AO’) in the version published on 
1 October 2002 (BGBl I 2002, 3866, corrected in BGBl I 2003, 61), last amended 
by Article 13 of the AIFM-Steuer-Anpassungsgesetz (AIFM Tax Amendment 
Law) of 18 December 2013 (BGBl I 2013, 4318, BStBl I 2014, 2) 
25 Paragraph 8 – Residence 
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‘A person shall be resident where he or she occupies a dwelling under 
circumstances that indicate that he or she will maintain and use that dwelling.’ 
26 Paragraph 9 – Habitual abode 
‘A person shall have his or her habitual abode where he or she is present in 
circumstances that indicate that he or she is not staying only temporarily in that 
place or territory. An unbroken stay of not less than six months’ duration shall be 
invariably and from the beginning of such stay regarded as a habitual abode in the 
territory of application of this Code; brief interruptions shall be excepted. The 
second sentence shall not apply where the stay is undertaken exclusively for 
visiting, recuperation, curative or similar private purposes and does not last more 
than one year.’ 
IV. 
27 1. Assessment of the case under German law 
28 (a) The bestowal of EUR 300 000 to the applicant for no consideration is 
subject to gift tax since it is a gift inter vivos for the purposes of Paragraph 1(1)(2) 
and Paragraph 7(1)(1) of the ErbStG. The gift tax became chargeable upon 
execution of the bestowal on 27 December 2013 (Paragraph 9(1)(2) of the 
ErbStG). As the acquirer, the applicant is subject to unlimited gift tax pursuant to 
the first sentence and point (a) of the second sentence of Paragraph 2(1)(1) of the 
ErbStG, since he was a resident, within the meaning of that provision, at the time 
the tax became chargeable. On the date the tax became chargeable, that is to say 
27 December 2013, he was resident, within the meaning of Paragraph 8 of the 
AO, in K (Germany). The applicant’s brother, as the donor, is not liable to gift tax 
under the first sentence and point (a) of the second sentence of Paragraph 2(1)(1) 
of the ErbStG, since he had neither a place of residence (Paragraph 8 of the AO) 
nor his habitual abode (Paragraph 9 of the AO) in Germany at the time the gift 
was made. 
29 (b) It is irrelevant that on 27 December 2013, the applicant had a place of 
residence in Luxembourg in addition to his place of residence in K (Germany). 
Under German law, a taxable person may simultaneously have several places of 
residence within the meaning of Paragraph 8 of the AO – in Germany and/or 
abroad. Residence is not subject to the condition that the taxable person actually 
stays in the dwelling for a minimum number of days per year. Residence also does 
not depend on whether the place at issue constitutes the centre of the taxable 
person’s life (judgments of the Bundesfinanzhof (Federal Finance Court; ‘BFH’) 
of 24 July 2018 – case ref. I R 58/16, Sammlung amtlich nicht veröffentlichter 
Entscheidungen des Bundesfinanzhofs (Collection of decisions of the Federal 
Finance Court not published officially) – BFH/NV – 2019, 104; and of 23 October 
2018 – case ref. I R 74/16, BFH/NV 2019, 388). 
30 2. Significance of European Union law 
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31 (a) The first sentence of Article 343 TFEU, read in conjunction with the first 
sentence of the first paragraph of Article 13 of the Protocol, provide that, in the 
application of income tax, wealth tax and death duties and in the application of 
conventions on the avoidance of double taxation concluded between Member 
States of the Union, officials and other servants of the Union who, solely by 
reason of the performance of their duties in the service of the Union, establish 
their residence in the territory of a Member State other than their country of 
domicile for tax purposes at the time of entering the service of the Union, are to be 
considered, both in the country of their actual residence and in the country of 
domicile for tax purposes, as having maintained their domicile in the latter 
country provided that it is a member of the Union. According to the second 
sentence of Article 343 TFEU, read in conjunction with the first half-sentence of 
Article 21(1) of the Protocol, that provision is also to apply to the EIB, the 
members of its organs and its staff. According to Article 51 TEU, read in 
conjunction with the first sentence of Article 343 TFEU, the Protocol is to form an 
integral part of the Treaty on the Functioning of the European Union. As primary 
European Union law, it is to take precedence over the law of the Member States. 
32 (b) If the first sentence of the first paragraph of Article 13 of the Protocol 
applies to gift tax, it could preclude a finding that the applicant is domiciled in 
Germany for tax purposes, thereby also precluding him from being subject to 
unlimited tax liability in Germany. That would be the case if the first sentence of 
the first paragraph of Article 13 of the Protocol were to be interpreted as meaning 
that, besides the place of domicile for tax purposes in the Member State of origin 
(in the present case, Austria), no further place of domicile for tax purposes can 
arise if, in the course of the employment relationship, the official or other servant 
of the Union (in the present case, the EIB) establishes an actual place of residence 
in another Member State (in the present case, Germany) in addition to his or her 
actual place of residence in the Member State in which he or she performs his or 
her duties (in the present case, Luxembourg). Taking into account the case-law of 
the Court, the interpretation of the first sentence of the first paragraph of 
Article 13 of the Protocol as regards its application to gift tax and when a domicile 
for tax purposes is established is neither clear a priori (‘acte clair’) nor clarified 
by case-law in a manner that leaves no scope for reasonable doubt (‘acte éclairé’). 
The Chamber therefore considers it necessary to refer to the Court the first 
question concerning the scope of the first sentence of the first paragraph of 
Article 13 of the Protocol and the second question concerning the legal 
consequences in the event that that provision is applicable. 
33 3. The first question referred for a preliminary ruling 
34 (a) It is necessary to determine whether the first sentence of the first paragraph 
of Article 13 of the Protocol applies to gift tax. According to its wording, the 
provision applies to ‘the application of income tax, wealth tax and death duties 
and … conventions on the avoidance of double taxation concluded between 
Member States of the Union’. Gift tax is not expressly mentioned. 
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35 (b) Under German law, gift tax is organised as a form of taxation independent 
of income tax, wealth tax and death duties. It is primarily levied on gifts inter 
vivos (Paragraph 1(1) (2) of the ErbStG). In particular, a gift inter vivos is deemed 
to be any bestowal inter vivos made freely, in so far as the beneficiary is enriched 
by it at the expense of the person making the bestowal (Paragraph 7(1)(1) of the 
ErbStG). Gift tax is levied on the enrichment that the beneficiary receives as a 
result of the acquisition of assets for no consideration. 
36 In the view of the referring Chamber, the differences between gift tax and income 
tax, wealth tax and death duties militate against the inclusion of gift tax in the 
material scope of the first sentence of the first paragraph of Article 13 of the 
Protocol. 
37 Gift tax differs from income tax in that it is not linked to the creation of value on 
the market (referred to as market income), but rather to a transfer of assets (see 
Seer in Tipke/Lang, Steuerrecht (Tax Law), 25th ed., chapter 15, paragraph 15.3 et 
seq.). For that reason, the referring Chamber classifies gift tax as a transfer tax 
(BFH judgment of 6 May 2020 – case ref. II R 34/17, Sammlung der 
Entscheidungen des Bundesfinanzhofs (Collection of Decisions of the Federal 
Finance Court; ‘BFHE’) – 269, 419, BStBl II 2020, 744, paragraph 15, with 
further references). 
38 Wealth tax has not been levied in Germany since 1997. Unlike in the case of 
wealth tax, gift tax is not levied on the holding of assets, but instead taxes the 
additional economic capacity of the acquirer resulting from a gift (see BFH order 
referring the case to the Bundesverfassungsgericht (Federal Constitutional Court, 
Germany) of 22 May 2002 – case ref. II R 61/99, BFHE 198, 342, BStBl II 2002, 
598, under heading II.1.; Begründung zur Reform des Erbschaftsteuergesetzes 
(Reasoning for reforming the Law on inheritance tax), Drucksachen des deutschen 
Bundestages (Printed Papers of the German Bundestag) VI/3418, p. 59). 
39 Gift tax differs from inheritance tax, which is organised in Germany in the form of 
a tax upon the vesting of an inheritance (rather than as a tax on the estate), in that 
the taxed bestowal is given during the lifetime of the person making the bestowal. 
By contrast, inheritance tax covers bestowals made on account of the death of the 
person making the bestowal. Accordingly, gifts differ from inheritances in that 
their timing can be planned; whereas the time of a gift can be freely chosen, the 
occurrence of death, and thus of the vesting of an inheritance, is left to chance. 
40 (c) However, the referring Chamber has doubts as to whether gift tax is 
excluded from the scope of the provision. 
41 (aa) Gift tax could be equated with the term ‘income tax’ as used in the first 
sentence of the first paragraph of Article 13 of the Protocol. Although German gift 
tax is linked to a transfer of assets, it is, by its very nature, a tax on enrichment 
(BFH order referring the case to the Federal Constitutional Court (Germany) of 
18 December 1972 – case ref. II R 87-89/70, BFHE 108, 393, BStBl II 1973, 329, 
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under heading IV.3.b; BFH judgments of 9 August 1983 – case ref. VIII R 35/80, 
BFHE 139, 253, BStBl II 1984, 27, under heading 2.b; and of 1 July 2008 – case 
ref. II R 2/07, BFHE 222, 68, BStBl II 2008, 897, under heading II.1.a; see 
Meincke/Hannes/Holtz, Erbschaftsteuer- und Schenkungsteuergesetz, Kommentar 
(Law on inheritance tax and gift tax, commentary), 18th Ed., Introduction, 
paragraph 1: ‘Doppelgesicht’ der Erbschaft- und Schenkungsteuer (‘Dual aspect’ 
of inheritance tax and gift tax)). 
42 Like inheritance tax, gift tax can be described as income tax in the broader sense 
(see, for example, Crezelius, Finanz-Rundschau (Finance Review; ‘FR’) 2007, 
613, 616; Seer in Tipke/Lang, Steuerrecht, 25th Ed., chapter 15, paragraph 15.1 et 
seq.; Meincke/Hannes/Holtz, Erbschaftsteuer- und Schenkungsteuergesetz, 
Kommentar, 18th Ed., Introduction, paragraph 3; Gottschalk in 
Troll/Gebel/Jülicher/Gottschalk, ErbStG, Introduction, paragraph 35). As personal 
taxes (or subject taxes), income tax, inheritance tax and gift tax cover 
circumstances where there is an increase in economic capacity, whereby situations 
coming under income tax law are linked to events associated with consideration 
and situations coming under the law governing inheritance tax and gift tax are 
linked to events which are not associated with consideration (Crezelius, FR 2007, 
613, 616; idem, Deutsche Steuerjuristische Gesellschaft (German Tax Lawyers’ 
Association), Volume 22 1999, 73, 106, 124). Upon the enrichment of the 
beneficiary, inheritance tax and gift tax are levied on an individual increase in 
wealth and thus on income in the broader sense. In that respect, the Law on 
inheritance tax and gift tax supplements what can be subject to income tax and 
other taxes on earnings, which tax only increases in wealth generated on a market, 
in order to include augmentations in wealth that the acquirer did not have to earn 
as profit or generate by implementing financial resources, or by means of 
exchanges with other assets (Gottschalk in Troll/Gebel/Jülicher/Gottschalk, 
ErbStG, Introduction, paragraph 35). 
43 In Germany, inheritance tax and gift tax have not been integrated into the 
Einkommensteuergesetz (Law on income tax), primarily for practical (regulatory) 
reasons (Seer in Tipke/Lang, Steuerrecht, 25th Ed., chapter 15, paragraph 15.2; 
Meincke/Hannes/Holtz, Erbschaftsteuer- und Schenkungsteuergesetz, 
Kommentar, 18th Ed., Introduction, paragraph 3, in each case with further 
references). By contrast, in other Member States, gifts are directly covered by the 
scope of income tax (for example, the Kingdom of Denmark, the Republic of 
Estonia, the Republic of Lithuania and the Czech Republic, including in the 
former Member State of the United Kingdom). 
44 (bb) Gift tax could also be equated with the term ‘death duties’ as used in the 
first sentence of the first paragraph of Article 13 of the Protocol. That is because 
gift tax is merely an anticipatory form of inheritance tax (Seer in Tipke/Lang, 
Steuerrecht, 25th Ed., chapter 15, paragraph 15.4; Curdt in Kapp/Ebeling, ErbStG, 
Introduction, paragraph 19). In the light of the objective of inheritance tax, which 
is to tax assets acquired without any personal contribution on the part of the 
acquirer on the basis of the individual enrichment accruing to him or her, it is 
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irrelevant whether the assets are acquired by reason of death, or inter vivos for no 
consideration. Gift tax therefore serves as the necessary supplement to inheritance 
tax (Crezelius, FR 2007, 613, 616). If there is no taxation of gifts inter vivos, 
inheritance tax could be easily avoided by means of disposals of assets during the 
lifetime of the deceased (Crezelius, FR 2007, 613, 616; Seer in Tipke/Lang, 
Steuerrecht, 25th Ed., chapter 15, paragraph 15.4; Curdt in Kapp/Ebeling, ErbStG, 
Introduction, paragraph 19). Against that background, the provisions of the Law 
on inheritance tax and gift tax apply mutatis mutandis to gifts inter vivos 
(Paragraph 1(2) of the ErbStG; see Seer in Tipke/Lang, Steuerrecht, 25th Ed., 
chapter 15, paragraph 15.4.). Based on the notion of an ‘anticipated inheritance’, 
gift tax is levied, in essence, according to the same statutory rules as apply in the 
case of inheritance tax, which is why it is often dealt with under the umbrella term 
of inheritance tax. Other Member States, such as the French Republic, the Italian 
Republic, the Republic of Poland and the Kingdom of Spain, adopt the same 
approach. 
45 4. The second question referred for a preliminary ruling 
46 (a) The second question referred for a preliminary ruling is relevant to the 
decision only if the first question referred is answered to the effect that the first 
sentence of the first paragraph of Article 13 of the Protocol does apply to gift tax. 
It would then be necessary to clarify whether the first sentence of the first 
paragraph of Article 13 of the Protocol precludes an official or other servant of the 
Union, who establishes his or her residence in the territory of a Member State 
other than the Member State of origin solely by reason of the performance of his 
or her duties in the service of the Union, from establishing an additional domicile 
for tax purposes in a Member State other than the State in which he or she 
performs his or her duties if, at the same time, he or she retains an actual residence 
in the State in which he or she performs his or her duties. In other words, the 
question arises as to whether that provision must be interpreted as meaning that, 
besides the domicile for tax purposes in the Member State of origin that persists 
by virtue of the first sentence of the first paragraph of Article 13 of the Protocol, 
no further domicile for tax purposes can be established if, in the course of his or 
her employment relationship, an official or other servant of the Union establishes 
an actual residence in another Member State alongside his or her actual residence 
in the State in which he or she performs his or her duties. 
47 (b) According to the Court’s case-law, Article 13 of the Protocol establishes a 
division of taxation powers between the Union, the Member State where the 
official or other servant had his or her domicile for tax purposes before entering 
the service of the Union, and the Member State where he or she performs his or 
her duties in the service of the Union (see CJEU judgment X v Staatssecretaris 
van Financiën of 17 June 1993 – C-88/92, EU:C:1993:246, paragraph 11). 
According to the first sentence of the first paragraph of Article 13 of the Protocol, 
the Member State of origin, in which the domicile of the official or other servant 
is maintained for tax purposes, remains in principle competent to levy income tax, 
wealth tax and death duties, even if the official or other servant is not actually 
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resident there (see CJEU judgment, Gistö of 28 July 2011 – C-270/10, 
EU:C:2011:529, paragraph 17). Article 13 of the Protocol does not give an official 
of the Union a choice as to the establishment of his or her domicile for tax 
purposes. The division of powers established by that provision would be 
compromised if an official had the free choice to move his or her domicile for tax 
purposes to a State other than that of his or her original domicile for tax purposes. 
Article 13 of the Protocol must be interpreted as meaning that the domicile for tax 
purposes of a Union official cannot depend on the will of the person concerned 
(CJEU judgments in X v Staatssecretaris van Financiën of 17 June 1993 – 
C-88/92, EU:C:1993:246, paragraphs 12 et seq. and 16; and in Gistö of 28 July 
2011 – C-270/10, EU:C:2011:529, paragraph 18). 
48 (c) On the basis of those standards, the referring Chamber understands the 
provision set down in the first sentence of the first paragraph of Article 13 of the 
Protocol to mean that, besides the domicile for tax purposes in the Member State 
of origin, no other domicile for tax purposes may arise in cases where officials 
establish, in addition to their residence at the place of employment, an actual 
residence in a Member State other than the State where they perform their duties. 
In the opinion of the Chamber, the division of taxation powers to levy income tax, 
wealth tax and death duties is to be based on the date of entry into the service of 
the Union. The establishment of further actual places of residence at a later date 
has no bearing on that division as long as the official performs his or her duties in 
the service of the Union. Since the domicile for tax purposes cannot depend on the 
will of the person concerned, the Member State of origin – and that Member State 
alone – remains competent to levy income tax, wealth tax and death duties, even 
where officials, without renouncing their actual residence at their place of 
employment, establish, for private reasons, residencies in Member States other 
than State in which they perform their duties. In the opinion of the Chamber, the 
reasons for establishing an additional residence (business, private, and so forth) 
are irrelevant. 
49 (d) That interpretation is not free from doubt. According to its wording, the 
first sentence of the first paragraph of Article 13 of the Protocol provides only for 
the establishment of a residence at the place of employment at the time of entry 
into the service of the Union. The provision makes no reference to the subsequent 
establishment of an additional place of residence in a Member State other than the 
State in which the official performs his or her duties. Nevertheless, the application 
of the first sentence of the first paragraph of Article 13 of the Protocol is subject to 
the condition that officials ‘solely by reason of the performance of their duties in 
the service of the Union’ establish their residence ‘in the territory of a Member 
State other than [their country of domicile for tax purposes]’. That is not the case 
where residence is established in a Member State other than the State of 
performance of the official duties if the purpose of that residence is to establish a 
joint household with a spouse. Moreover, the wording ‘both in the country of their 
actual residence and in the country of domicile for tax purposes’ might indicate 
that the first sentence of the first paragraph of Article 13 of the Protocol governs a 
division of the powers of taxation only as between the State of origin and the 
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Member State in which the official duties are performed. That could mean that, in 
addition to the notional domicile in the State of origin, officials could establish 
further domiciles for tax purposes in Member States other than the State of 
performance of their duties. Competing tax obligations in several Member States 
would then, where appropriate, have to be redressed by conventions on the 
avoidance of double taxation. In the case at issue there were, however, no claims 
of competing tax liabilities, but only a tax liability in Germany, since Austria had 
already abolished inheritance tax and gift tax as of 1 August 2008. 
50 5. The questions referred to the Court are relevant to the judgment to be delivered. 
51 If the first question and the second question referred for a preliminary ruling were 
to be answered in the affirmative, the Tax Office’s appeal on a point of law would 
have to be dismissed as unfounded. 
52 If the first question or the second question referred for a preliminary ruling were 
to be answered in the negative, the Tax Office’s appeal on a point of law would be 
well-founded; the judgment at first instance would have to be set aside and the 
action at first instance would have to be rejected. 
53 6. The request to the Court for a preliminary ruling is necessary, within the 
meaning of the third paragraph of Article 267 TFEU.