Case C-520/04: Judgment of the Court (First Chamber) of 9 November 2006 (reference for a preliminary ruling from the Korkein hallinto-oikeus — Finland) — Pirkko Marjatta Turpeinen (Freedom of movement for persons — Income tax — Retirement pension — Higher rate of tax for retired persons residing in another Member State)
Date: 2006-12-30
Institutions: Court of Justice
Subjects: deduction at source, double taxation, free movement of workers, interpretation of the law, pension scheme, retired person

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

30.12.2006

EN

Official Journal of the European Union

C 326/7

Operative part of the judgment

Article 18 EC must be interpreted as meaning that
it precludes
national legislation according to which the income tax on a retirement
pension paid by an institution of the Member State concerned to a
person residing in another Member State exceeds in certain cases the
tax which would be payable if that person resided in the first Member
State, where that pension constitutes all or nearly all of that person's
income.

ment of the Association must be interpreted as meaning that a Turkish
worker can rely on the rights conferred upon him by that provision
only where his paid employment with a second employer complies with
the conditions laid down by law and regulation in the host Member
State governing entry into its territory and employment. It is for the
national court to make the requisite findings in order to establish
whether that is the case in respect of a Turkish worker who changed
employer prior to expiry of the period of three years provided for in the
second indent of Article 6(1) of that decision.

(1) OJ C 57, 05.03.2005.

The second sentence of Article 6(2) of Decision No 1/80 must be
interpreted as meaning that it is intended to ensure that periods of
interruption of legal employment on account of involuntary unemploy-
ment and long term sickness do not affect the rights that the Turkish
worker has already acquired owing to preceding periods of employment
the length of which is fixed in each of the three indents of Article 6(1)
respectively.

Judgment of the Court (First Chamber) of 26 October 2006
(reference for a preliminary ruling from the Verwaltungs-
gericht Aachen, Germany) — Hasan Güzeli v Oberbürger-
meister der Stadt Aachen

(1) OJ C 57, 05.04.2005.

(Case C-4/05) (1)

(Reference for a preliminary ruling — EEC-Turkey Associa-
tion — Freedom of movement for workers — Article 10(1) of
Decision No 1/80 of the Association Council — Refusal to
extend a Turkish worker's residence permit)

(2006/C 326/14)

Language of the case: German

Referring court

Verwaltungsgericht Aachen

Parties to the main proceedings

Applicant: Hasan Güzeli

Judgment of the Court (Third Chamber) of 26 October
the European Communities v
2006 — Commission of

Kingdom of Spain

(Case C-36/05) (1)

(Failure of a Member State to fulfil obligations — Directive
92/100/EEC — Copyright — Rental and lending right —
Failure to transpose within the prescribed period)

(2006/C 326/15)

Language of the case: Spanish

Defendant: Oberbürgermeister der Stadt Aachen

Parties

Re:

Reference for a preliminary ruling — Verwaltungsgericht
Aachen — Interpretation of Article 10(1) of Decision No 1/80
of the EEC/Turkey Association Council — Non discrimination
against Turkish workers duly registered as belonging to the
labour force as regards conditions of employment — Refusal to
extend the residence permit putting an end to the employment
of a seasonal Turkish worker in possession of a work permit of
unlimited duration

Applicant: Commission of the European Communities (repre-
sented by: J.R. Vidal Puig and W. Wils, acting as Agents)

Defendant: Kingdom of Spain (represented by:
Contreras, acting as Agent)

I. del Cuvillo

Re:

Operative part of the judgment

The first indent of Article 6(1) of Decision No 1/80 of the EEC
Turkey Association Council of 19 September 1980 on the develop-

Failure of a Member State to fulfil its obligations — Infringe-
ment of Articles 1 and 5 of Council Directive 92/100/EEC of
19 November 1992 on rental right and lending right and on
certain rights related to copyright in the field of intellectual
property (OJ 1992 L 346, p. 61)