Case C-520/04: Reference for a preliminary ruling from the Korkein hallinto-oikeus by order of that court of 20 December 2004, received at the Court Registry on 22 December 2004, in the case of Pirkko Marjatta Turpeinen
Date: 2005-03-05
Institutions: Court of Justice
Subjects: deduction at source, double taxation, free movement of workers, interpretation of the law, pension scheme, retired person

5.3.2005

EN

Official Journal of the European Union

C 57/17

Reference for a preliminary ruling from the Korkein
hallinto-oikeus by order of that court of 20 December
2004, received at the Court Registry on 22 December
2004, in the case of Pirkko Marjatta Turpeinen

Kingdom of Belgium by the Commission of
the European
Communities, represented by Richard Lyal and Dimitris Trian-
tafyllou, acting as Agents, with an address for service in Luxem-
bourg.

(Case C-520/04)

(2005/C 57/32)

(Language of the case: Finnish)

Reference has been made to the Court of Justice of the Euro-
the Korkein hallinto-oikeus
pean Communities by order of
(Supreme Administrative Court, Finland) of 20 December
2004, received at the Court Registry on 22 December 2004,
for a preliminary ruling in the case of Pirkko Marjatta
Turpeinen on the following questions:

1. Is Article 18 of the Treaty establishing the European Com-
munity on the right of a citizen of the Union to move and
reside freely in the territory of the Member States, or Article
39 on ensuring the freedom of movement of workers
within the Community, to be interpreted as meaning that
one or both of them preclude national
legislation under
which, in the case of a person who resides abroad and is a
limited taxpayer in the Member State, the withholding tax
charged on the taxpayer's pension based on a public-law
service relationship paid from that Member State exceeds in
certain cases the tax which the taxpayer would be charged
as a person resident and hence a general taxpayer in the
Member State?

2. Is Council Directive 90/365/EEC on the right of residence
for employees and self-employed persons who have ceased
their occupational activity (1) to be interpreted as precluding
national
legislation such as that described in Question 1
above?

(1) OJ L 180 of 13.7.1990, p. 28.

Action brought on 23 December 2004 by the Commission
of the European Communities against the Kingdom of
Belgium

(Case C-522/04)

(2005/C 57/33)

(Language of the case: English)

An action was brought before the Court of Justice of the Euro-
the
pean Communities on 23 December 2004 against

The Commission of the European Communities claims that the
Court of Justice should declare that:

— by making the deductibility of employers' contributions for
supplementary old age and premature death insurance
subject to the condition,
laid down in Article 59 of the
CIR'92 (Income Tax Code), that the contributions must be
paid to an insurance undertaking or welfare fund estab-
lished in Belgium;

— by making the reduction of

tax for long-term savings,
granted by virtue of Articles 145/1 and 145/3 of
the
CIR'92 for personal contributions for supplementary old
age and premature death insurance in the form of deduc-
tions made by the employer from the employee's remunera-
tion, subject to the condition that the contributions must
be paid to an insurance undertaking or welfare fund estab-
lished in Belgium;

— by providing in Article 364 bis of the CIR'92 that, where
capital, surrender values and savings referred to in Article
34 if the CIR'92 are paid or allocated to a taxpayer who
has previously transferred his residence or the primary loca-
tion of his assets abroad, the payment or allocation is
deemed to have taken place on the day preceding that
transfer, and by, under paragraph 2 of the same article,
transfers referred to in
assimilating to an allocation all
Article 34(2)(3), so that every insurer is under an obligation
to withhold amounts in respect of income tax, in accord-
ance with Article 270 of the CIR'92,
from capital and
redemption values paid to a non-resident who has been, at
tax purposes in
one time or another, a resident
Belgium, provided that those sums have, totally or partially,
been constituted during the period in which the person
concerned was a Belgian resident for tax purposes, even
tax agreements concluded by Belgium
though bilateral
grant the right to tax such income to another Contracting
State;

for

— by levying tax, under Article 364 ter of the CIR'92, on
transfers of capital or redemption values constituted by
means of employers' contributions or personal contribu-
tions for supplementary retirement benefits, effected by the
pension fund or insurance institution with which they have
been established,
the beneficiary or
for the benefit of
persons claiming through him, to another pension fund or
insurance institution established outside Belgium, whereas
such a transfer does not constitute a taxable transaction if
the capital or redemption values are transferred to another
pension fund or
institution established in
Belgium; and

insurance