Case C-513/04: Judgment of the Court (Grand Chamber) of 14 November 2006 (reference for a preliminary ruling from the Rechtbank van eerste aanleg te Gent (Belgium)) — Mark Kerckhaert, Bernadette Morres v Belgische Staat (Income tax — Dividends — Tax burden on dividends from shareholdings in companies established in another Member State — No possibility in the State of residence to set off income tax levied at source in another Member State)
Date: 2006-12-30
Institutions: Court of Justice
Subjects: double taxation, free movement of capital, interpretation of the law, tax on investment income

C 326/6

EN

Official Journal of the European Union

30.12.2006

Re:

Failure of a Member State to fulfil obligations — Breach of Arti-
cles 49 EC and 50 EC — National legislation requiring princi-
pals and contractors, on pain of a fine, to withhold 15 % of the
amount billed by contracting partners not registered in Belgium
and to pay the sum withheld to the Belgian authorities, in order
to ensure that the tax debts of those contracting partners are
paid — Joint and several liability of principals and contractors
for the tax debts of their contracting partners who are not regis-
tered

Operative part of the judgment

The Court:

1. Declares that, by obliging principals and contractors who have
recourse to foreign contracting partners not registered in Belgium to
withhold 15 % of the sum payable for work carried out and by
imposing on those principals and contractors joint and several liabi-
lity for the tax debts of such contracting partners, the Kingdom of
Belgium has failed to fulfil its obligations under Articles 49 EC
and 50 EC;

2. Orders the Kingdom of Belgium to pay the costs.

(1) OJ C 300, 04.12.2004.

Judgment of the Court (Grand Chamber) of 14 November
2006 (reference
a preliminary ruling from the
Rechtbank van eerste aanleg te Gent (Belgium)) — Mark
Kerckhaert, Bernadette Morres v Belgische Staat

for

(Case C-513/04) (1)

(Income tax — Dividends — Tax burden on dividends from
shareholdings in companies established in another Member
State — No possibility in the State of residence to set off
income tax levied at source in another Member State)

(2006/C 326/12)

Language of the case: Dutch

Referring court

Rechtbank van eerste aanleg te Gent

Parties to the main proceedings

Applicants: Mark Kerckhaert, Bernadette Morres

Defendant: Belgische Staat

Re:

Reference for a preliminary ruling — Rechtbank van eerste
aanleg te Gent — Interpretation of Article 56(1) EC — Restric-

tion resulting from a national income tax provision — Domestic
and foreign dividends — Uniform tax rate — Tax burden higher
in regard to dividends from shareholdings in companies estab-
lished in another Member State — Taxation at source — Not
taken into account — Free movement of capital — Discrimina-
tion

Operative part of the judgment

Article 73b(1) of the EC Treaty (now Article 56(1) EC) does not
preclude legislation of a Member State, such as Belgian tax legislation,
which, in the context of tax on income, makes dividends from shares
in companies established in the territory of that State and dividends
from shares in companies established in another Member State subject
to the same uniform rate of taxation, without providing for the possi-
bility of setting off tax levied by deduction at source in that other
Member State.

(1) OJ C 57, 5.3.2005.

Judgment of the Court (First Chamber) of 9 November
2006 (reference for a preliminary ruling from the Korkein
hallinto-oikeus — Finland) — Pirkko Marjatta Turpeinen

(Case C-520/04) (1)

(Freedom of movement for persons — Income tax — Retire-
ment pension — Higher rate of tax for retired persons
residing in another Member State)

(2006/C 326/13)

Language of the case: Finnish

Referring court

Korkein hallinto-oikeus

Parties to the main proceedings

Applicant: Pirkko Marjatta Turpeinen

Re:

Reference for a preliminary ruling — Korkein hallinto-oikeus —
Interpretation of Articles 12 EC and 39 EC and of Council
Directive 90/365/EEC of 28 June 1990 on the right of residence
for employees and self-employed persons who have ceased their
occupational activity (OJ 1990 L 180, p. 28) — National legisla-
tion under which the income of non-residents is subject to a
withholding tax — Pension paid to a retired person resident in
another Member State subject to a higher rate of tax than if that
person had been resident in the Member State concerned