Case C‑9/14

Staatssecretaris van Financiën

v

D.G. Kieback

(Request for a preliminary ruling from the Hoge Raad der Nederlanden)

‛Reference for a preliminary ruling — Freedom of movement for workers — Tax legislation — Income tax — Income received in a Member State — Non-resident worker — Tax in the State of employment — Conditions’

Summary — Judgment of the Court (Second Chamber), 18 June 2015

Freedom of movement for persons — Workers — Equal treatment — Remuneration — Income tax — Non-resident having received the major part of his income in a Member State during part of the year, but not during the year in question as a whole — National legislation not permitting the taking into account his personal and family circumstance — Lawfulness — Taxpayer having left the European Union in order to pursue his occupational activity in a non-member State — No effect

(Art. 39(2) EC)

Article 39(2) EC must be interpreted as not precluding a Member State, for the purposes of charging income tax on a non-resident worker who has pursued his occupational activity in that Member State during part of the year, from refusing to grant that worker a tax advantage which takes account of his personal and family circumstances, on the basis that, although he received, in that Member State, all or almost all his income from that period, that income does not form the major part of his taxable income for the entire year in question. The fact that that worker left to pursue his occupational activity in a non-member State and not in another EU Member State does not affect that interpretation.

A non-resident taxpayer who has not received, in the State of employment, all or almost all his family income from which he benefited during the year in question as a whole is not in a comparable situation to that of residents of that State so account does not need to be taken of his ability to pay tax charged, in that State, on his income. The Member State in which a taxpayer has received only part of his taxable income during the whole of the year at issue is therefore not bound to grant him the same advantages which it grants to its own residents.

That conclusion is not called into question by the fact that the party concerned left his employment in a Member State in order to pursue his occupational activity, not in another Member State, but in a non-member State. As regards the obligation that it lays down not to discriminate against a worker who has pursued an occupational activity in a Member State other than that of his residence, Article 39(2) EC must be interpreted as meaning that that obligation applies to each Member State. That this is the case as regards the Member State in which the worker, although residing in another Member State, pursued his activity before going to pursue it in another State, even if the latter is not a Member State, but a non-member State.

(see paras 34-36, operative part)

Case C‑9/14

Staatssecretaris van Financiën

v

D.G. Kieback

(Request for a preliminary ruling from the Hoge Raad der Nederlanden)

‛Reference for a preliminary ruling — Freedom of movement for workers — Tax legislation — Income tax — Income received in a Member State — Non-resident worker — Tax in the State of employment — Conditions’

Summary — Judgment of the Court (Second Chamber), 18 June 2015

Freedom of movement for persons — Workers — Equal treatment — Remuneration — Income tax — Non-resident having received the major part of his income in a Member State during part of the year, but not during the year in question as a whole — National legislation not permitting the taking into account his personal and family circumstance — Lawfulness — Taxpayer having left the European Union in order to pursue his occupational activity in a non-member State — No effect

(Art. 39(2) EC)

Article 39(2) EC must be interpreted as not precluding a Member State, for the purposes of charging income tax on a non-resident worker who has pursued his occupational activity in that Member State during part of the year, from refusing to grant that worker a tax advantage which takes account of his personal and family circumstances, on the basis that, although he received, in that Member State, all or almost all his income from that period, that income does not form the major part of his taxable income for the entire year in question. The fact that that worker left to pursue his occupational activity in a non-member State and not in another EU Member State does not affect that interpretation.

A non-resident taxpayer who has not received, in the State of employment, all or almost all his family income from which he benefited during the year in question as a whole is not in a comparable situation to that of residents of that State so account does not need to be taken of his ability to pay tax charged, in that State, on his income. The Member State in which a taxpayer has received only part of his taxable income during the whole of the year at issue is therefore not bound to grant him the same advantages which it grants to its own residents.

That conclusion is not called into question by the fact that the party concerned left his employment in a Member State in order to pursue his occupational activity, not in another Member State, but in a non-member State. As regards the obligation that it lays down not to discriminate against a worker who has pursued an occupational activity in a Member State other than that of his residence, Article 39(2) EC must be interpreted as meaning that that obligation applies to each Member State. That this is the case as regards the Member State in which the worker, although residing in another Member State, pursued his activity before going to pursue it in another State, even if the latter is not a Member State, but a non-member State.

(see paras 34-36, operative part)