WRITTEN QUESTION E-1109/04 by Paul Rübig (PPE-DE) to the Commission. Restriction on allowances in connection with foreign income.
Date: 2004-04-14
Institutions: European Parliament, Provisional data
Subjects: Austria, application of EU law, basis of tax assessment, tax harmonisation, tax relief, tax system

C 84 E/948

Official Journal of the European Union

EN

3.4.2004

The Commission is aware of a number of studies indicating that natural gas extraction from sub-surface
layers in the Wadden Sea may have direct and indirect negative effects on the Wadden Sea ecosystem, such
as a subsidence of the soil, a decreasing area of tidal mud flats and tidal marshes, changes in the
sedimentation regime, noise, visual disturbance and pollution risk. It is the responsibility of the competent
Dutch authorities to evaluate if the impact of the exploitation of another 40 billion cubic metres (m3) of
natural gas on the Wadden Sea is likely to be significant or not. Should it appear that significant negative
effects are likely to occur, then an appropriate assessment according to Article 6(3) of Directive 92/43/EEC
must be made. The competent national authorities may agree to the further exploitation of natural gas in
the Wadden Sea only after having ascertained that it will not adversely affect the integrity of the site
concerned and, if appropriate, after having obtained the opinion of the general public. The Commission is
of the opinion that in this context the precautionary principle has to be taken into account. The provisions
of Article 6(4) of Directive 92/43/EEC apply in the case of a negative assessment of
the project’s
implications for the site.

Compensatory measures are intended to compensate for the effects on a habitat affected negatively
2.
by a project. The design and feasibility of any compensatory measures for a given project can be
considered only after having precisely ascertained the negative impact of that project on a site. Changes in
the sedimentation regime in the Wadden Sea are among the potential effects of gas exploitation in that
area. It is the responsibility of the competent Dutch authorities to evaluate if any expected changes are
likely to have a significant effect on the Wadden Sea ecosystem and if so, to make sure that the relevant
provisions of Article 6(3) and (4) are applied.

It is a matter of subsidiarity and therefore completely left to Member States whether the gas demand
3.
in a certain Member State will be met by indigenous production or by imported gas. However, Member
States are obliged to ensure compliance of their respective policies with Community rules currently in
force, such as Directive 92/43/EEC.

(1) OJ L 103, 25.4.1979 as amended by Commission Directive 91/244/EEC of 6 March 1991, OJ L 115, 8.5.1991.
(2) OJ L 206, 22.7.1992.

(2004/C 84 E/1047)

WRITTEN QUESTION E-1109/04

by Paul Rübig (PPE-DE) to the Commission

(14 April 2004)

Subject: Restriction on allowances in connection with foreign income

Section 33, paragraph 10, of the 1988 Austrian Income Tax Law (EStG), in the version published in the
Austrian Federal Gazette (BGBl 818/1993), lays down that where, with regard to an assessment for the
calculation of tax, an average tax rate is applicable, that average rate is to be calculated after account has
been taken of the allowances granted pursuant to paragraphs 3 to 7 (except for child allowances granted
pursuant to paragraph 4, third line, subparagraph (a)). Those allowances may not be deducted a second
time when the average tax rate is applied. That provision guarantees that a taxpayer with an income in his
country of origin will receive the full allowances, while a taxpayer with foreign income is entitled solely to
allowances granted on a pro rate basis.

According to case-law of the Austrian Administrative Court with regard to the legal situation before the
publication of BGBl 818/1993, the allowances were not to be taken into account before the calculation of
the average tax rate but only in connection with the tax payable after application of the average tax rate to
the income subject to national tax. According to the judgment handed down by the European Court of
Justice on 12 December 2002 in Case C-385/00 (F.W.L. de Groot), the allowances granted in Austria, the
State of residence, must be admitted as deductible if no guarantee can be given that the amounts will be
deductible in the source State.

What measures is the Commission thinking of taking if the method of calculating the average tax rate,
including the application of a progressivity clause and the maximum assessment amount laid down in
Section 33, paragraph 10, of the 1988 Austrian Income Tax Law, proves to infringe Article 39 of the EC
Treaty?

3.4.2004

EN

Official Journal of the European Union

C 84 E/949

Answer given by Mr Bolkestein on behalf of the Commission

(30 April 2004)

A first examination of Section 33, paragraph 10, of the 1988 Austrian Income Tax Law (EStG), in the
led to doubts as regards its
version published in the Austrian Federal Gazette (BGBl 818/1993)
compatibility with EU law.

The Commission will therefore contact the Austrian Government for further information and, if necessary,
take further steps to ensure the compliance of the Austrian tax rule with EU law.

(2004/C 84 E/1048)

WRITTEN QUESTION E-1115/04

by Proinsias De Rossa (PSE) to the Commission

(14 April 2004)

Subject: Implementation of Work Discrimination Directive 2000/78/EC in Ireland

In response to my Written Question E-3840/03 (1), the Commission acknowledged receipt of the proposed
Irish Equality Bill on 16 January 2004. After consideration of the proposed Bill, I believe that the Irish
definition of employee in its Equality Bill appears to be in breach of the Equal Treatment in Employment
and Occupation Directive 2000/78/EC (2). Chapter 1, Article 3 of Council Directive 2000/78/EC states:

This Directive shall apply to all persons, as regards both the public and private sectors … in relation
to conditions for access to employment, to self-employment or to occupation, including selection
criteria and recruitment conditions, whatever the branch of activity …

Section 3 of Ireland’s Equality Bill 2004 fails to meet the requirements of Directive 2000/78/EC because
the Bill denies protection under equality legislation to individuals employed in a private residence. Section
3 reads: ‘employee … does not include a person employed in another person’s home for the provision of
personal services for persons residing in that home’.

Has the Commission made representations to the Irish Government with regard to the apparent
discrepancy that now exists between Irish legislation and EU Directives? What action is the Commission
proposing to take to ensure that this matter is addressed?

(1) See page 741.
(2) OJ L 303, 2.12.2000, p. 16.

Answer given by Mr Dimas on behalf of the Commission

(29 April 2004)

Although Ireland has sent the Commission a copy of its Equality Bill, as far as the Commission is aware,
this has not yet entered into force, and Ireland has therefore not yet transposed Council Directive 2000/
78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and
occupation. As mentioned in the reply to the Honourable Member’s previous question E-3840/03,
infringement proceedings have been launched against Ireland because of this failure.

The Commission has started to examine in detail the legislation of those Member States which have
transposed Directive 2000/78/EC into their national law, to check that the Directive has been properly
transposed. Where the Commission is not satisfied that the Directive has been correctly transposed into
national law, infringement procedures will be launched.

The Commission cannot take formal action against a Member State while its legislation is still in draft
form. The points raised by the Honourable Member will be part of the examination of the Irish legislation
for conformity with the Directive.