CELEX: 62014CC0009
Language: en
Date: 2015-03-05 00:00:00
Title: Opinion of Advocate General Sharpston delivered on 5 March 2015.#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.#Case C-9/14.

OPINION OF ADVOCATE GENERAL
      SHARPSTON
      delivered on 5 March 2015 (
            1
         )
      
         Case C‑9/14
      
      
         Staatssecretaris van Financiën
      
      
         v
      
      
         D.G. Kieback
      
      
         (Request for a preliminary ruling
      
      
         from the Hoge Raad der Nederlanden (Netherlands))
      
      ‛Freedom of movement for workers — Equal treatment of residents and non-residents — Income tax — Worker who did not receive, on an annual basis, all or almost all of his taxable income in the Member State where he was employed but did not reside — Personal and family circumstances of the worker concerned — Deduction of mortgage interest related to a personal dwelling during part of a tax year during which the worker received all or almost all of his taxable income in the Member State of employment — Worker moving to a non-Member State during that year’
      
               1. 
            
            
               The present reference concerns the extent to which, in relation to income tax, the non-discrimination rule which is at the heart of freedom of movement for workers (Article 39 EC, now Article 45 TFEU) (
                     2
                  ) requires Member States to grant non-resident taxpayers the same tax advantages related to their personal and family circumstances as those granted to resident taxpayers.
            
         
               2. 
            
            
               The Court held in essence in Schumacker (
                     3
                  ) and subsequent case-law (
                     4
                  ) that residents and non-residents are not in general in comparable situations as regards income tax, since the State of residence is usually in a better position to assess a person’s overall ability to pay tax. Freedom of movement for workers therefore does not in principle require the State of employment to take into consideration non-resident taxpayers’ personal and family circumstances when assessing their liability to tax. The opposite is true, however, if the non-resident taxpayer does not receive sufficient taxable income in his State of residence to enable his personal and family circumstances to be taken into consideration there.
            
         
               3. 
            
            
               In the present reference, the Hoge Raad der Nederlanden (Supreme Court of the Netherlands, ‘the referring court’) seeks guidance on the application of differential tax rules to residents and non-residents. Where a taxpayer employed in Member State A (the Netherlands) but resident in Member State B (Germany) receives all (or almost all) of his taxable income from Member State A during part of a tax year, but then terminates his employment in Member State A and moves to a non-Member State (the United States of America) where he derives the major part of his tax income for that year, is Member State A required to allow him to deduct from his taxable income mortgage interest related to a personal dwelling in Member State B in the same way as it would for a resident taxpayer? The referring court also asks whether the fact that the non-resident taxpayer moves to, and takes up employment in, a non-Member State rather than a Member State has any bearing on the answer to be given to that question.
            
         
         Legislative background
      
      
         European Union law
      
      
               4.
            
            
               Article 39(1) EC provided that freedom of movement for workers was to be secured within the Community. Article 39(2) EC further stated that such freedom of movement entailed the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment.
            
         
         Netherlands law (
            5
         )
      
               5.
            
            
               Tax treatment of residents and non-residents is governed in the Netherlands by the Wet op de Inkomstenbelastingen 2001 (Law on income tax 2001, ‘the WIB 2001’).
            
         
               6.
            
            
               Pursuant to Article 2.3 of the WIB 2001, income tax is charged on, inter alia, employment income and income from a dwelling. In accordance with Article 3.112, the advantages which the taxpayer derives from occupying his own dwelling are calculated by reference to a percentage of the dwelling’s value. Article 3.120 enables mortgage interest from a personal dwelling to be deducted from the taxable basis.
            
         
               7.
            
            
               A person who resides in the Netherlands during the whole of a tax year has no option as regards his tax status. That person is taxed in the Netherlands as a resident taxpayer, which means that he is taxed on his worldwide income there and he can deduct mortgage interest from a personal dwelling.
            
         
               8.
            
            
               A person who does not reside in the Netherlands but who receives taxable income there (including thus a non-resident who receives all or almost all of his income during the first three months of a tax year in that Member State) has two options (Article 2.5(1) of the WIB 2001). He can opt, first, for the status of a resident taxpayer for the full tax year, with the same consequences as those set out in point 7 above (Option 1). Alternatively, he can opt to be treated as a non-resident taxpayer for the full tax year (Option 2). In that case, income tax is due in the Netherlands on income received in that Member State only and the taxpayer may not deduct from the taxable basis mortgage interest related to a personal dwelling.
            
         
               9.
            
            
               Like a non-resident taxpayer, a person who resides in the Netherlands during the first part of a tax year and then moves to another State (including thus a person who resides in the Netherlands during the first three months of a tax year, earns all or almost all of his income in that Member State during that period and then moves to and starts new employment in another State) can opt for the status of a resident taxpayer for the full tax year, on the basis of Article 2.5(1) of the WIB 2001. (
                     6
                  )
            
         
               10.
            
            
               Based on the explanations provided by the referring court and the Commission, it appears that such a person can also decide to be subject consecutively to the regimes applicable to resident and non-resident taxpayers in the course of the tax year in question (Option 3). This means splitting that tax year into two parts. For the part of the year during which that person resides in the Netherlands, he is subject to the regime applicable to resident taxpayers, which means that he is taxed on his worldwide income and may deduct from that taxable basis mortgage interest from a personal dwelling. For the remaining part of the year (during which he resides in another State), he is only taxed in the Netherlands on income received there (if he receives any) and may not deduct mortgage interest related to a personal dwelling.
            
         
         Facts, procedure and questions referred
      
      
               11.
            
            
               During the 2005 tax year (1 January 2005 to 31 December 2005), Mr Kieback, a German national, resided in Aachen (Germany) between 1 January and 31 March but received all or almost all of his income for those three months (that is to say EUR 261642) from his employment at a hospital in Maastricht (Netherlands). He lived in his personal dwelling, in respect of which he paid mortgage interest.
            
         
               12.
            
            
               On 1 April 2005, Mr Kieback moved to the United States, where he started work for the Baylor College of Medicine. He received an income of EUR 375793 from that employment for the remaining nine months of 2005. He sold his house in Aachen (and presumably, therefore, cleared the mortgage) on 20 June 2005.
            
         
               13.
            
            
               Although Mr Kieback had opted in previous tax years for the regime applicable to resident taxpayers in the Netherlands, on the basis of Article 2.5(1) of the WIB 2001, he chose to be subject to the regime applicable to non-residents for the 2005 tax year. The Netherlands tax authorities therefore taxed Mr Kieback only on the income which he received in that Member State. They also refused to allow him to deduct from the taxable basis mortgage interest related to his dwelling in Germany attributable to the period between 1 January and 31 March 2005. (
                     7
                  )
            
         
               14.
            
            
               Mr Kieback successfully challenged that decision before the Rechtbank Breda (District Court, Breda). The Gerechtshof te ’s-Hertogenbosch (Court of Appeal, ’s-Hertogenbosch) confirmed that judgment on appeal.
            
         
               15.
            
            
               In his appeal on a point of law before the referring court, the Staatssecretaris van Financiën (State Secretary for Finance) submits that the State of employment is required to grant a non-resident taxpayer the same tax advantages related to his personal and family circumstances as those granted to resident taxpayers — including deduction of mortgage interest related to a personal dwelling — only where that person receives all or almost all of his total income over the entire tax year in that State. That is clearly not the case in the main proceedings.
            
         
               16.
            
            
               Against that background, the referring court has requested a preliminary ruling on the following questions:
               
                        ‘(1)
                     
                     
                        Must Article 39 EC be interpreted as meaning that the Member State where a taxpayer engages in paid employment is, when charging income tax, to take the personal and family circumstances of the interested party into account in circumstances where (i) that taxpayer only worked for a part of the tax year in that Member State while living in another Member State, (ii) he received all, or almost all, of his income for that period in that State of employment, (iii) he has left, in the course of the relevant year, to live and work in another State, and (iv) when the tax year is considered as a whole, he did not receive all, or almost all, of his income in the first-mentioned State of employment?
                     
                  
                        (2)
                     
                     
                        Does it make a difference to the answer to the first question whether the State where the worker has gone to live and work during the course of the tax year is not a Member State of the European Union?’
                     
                  
         
               17.
            
            
               Written observations have been submitted by Mr Kieback, the German, Netherlands, Portuguese and Swedish Governments and the European Commission. Although Mr Kieback requested a hearing, the Court considered that it had sufficient information to give a ruling based on the submissions lodged during the written part of the procedure and therefore decided, pursuant to Article 76(2) of the Rules of Procedure, not to hold a hearing.
            
         
         Analysis
      
      
         Preliminary observations
      
      
               18.
            
            
               Pursuant to settled case-law, any Community national who, irrespective of his place of residence and his nationality, works in a Member State other than that of his residence falls within the scope of Article 39 EC. (
                     8
                  ) That was clearly Mr Kieback’s situation since he resided in Germany and was employed in the Netherlands during the first three months of 2005.
            
         
               19.
            
            
               Dealing with the present reference requires identifying at the outset the extent to which Mr Kieback has (or has not) been treated differently from other categories of taxpayers in the Netherlands in terms of whether his personal and family circumstances were taken into account.
            
         
               20.
            
            
               It appears from the material submitted to the Court that, under the Netherlands legislation applicable at the time of the facts in the main proceedings, only taxpayers who resided during part of a tax year in the Netherlands were entitled to be subject consecutively to the regimes applicable to resident and non-resident taxpayers in that Member State in the course of a single tax year. (
                     9
                  ) That possibility — which I have described above as Option 3 — clearly constituted a fiscal advantage. It enabled a taxpayer to be treated as a tax resident in the Netherlands (and therefore to deduct mortgage interest related to a personal dwelling) during part of the year, and to be taxed only on his income received in the Netherlands during the remaining part of that year. In 2005, a non-resident taxpayer like Mr Kieback could not benefit from that advantage, even if he received all or almost all of his income in the Netherlands during part of that tax year. (
                     10
                  )
            
         
               21.
            
            
               The main issue of discrimination raised by the present reference therefore concerns the difference in treatment between a person in the situation of Mr Kieback, on the one hand, and that of a taxpayer who resided and worked in the Netherlands during the first part of the tax year and then, like Mr Kieback, moved to another State to take up new employment for the remainder of that tax year, on the other hand.
            
         
               22.
            
            
               The order for reference and a number of the written submissions also touch on the issue whether the situations of Mr Kieback and a person who resided in the Netherlands throughout 2005 were comparable. That issue arises because, unlike Mr Kieback, such a resident taxpayer was entitled to deduct mortgage interest from a personal dwelling throughout the tax year. When comparing those taxpayers in the light of Schumacker, (
                     11
                  ) is it the tax year as a whole which should serve as the point of reference or rather just that part of the tax year during which the non-resident taxpayer received all or almost all of his income in the Netherlands?
            
         
               23.
            
            
               Lastly, I note that Mr Kieback, as a non-resident taxpayer in the Netherlands, could have opted for the regime applicable to residents to be applied to him for the whole of 2005 (Option 1). He would then have been entitled throughout the tax year to the deduction of mortgage interest on his dwelling (
                     12
                  ) but would also have been liable to tax in the Netherlands on his worldwide income. (
                     13
                  ) As the Court made clear in Gielen, however, the mere fact that under a Member State’s tax law a non-resident taxpayer may opt for treatment as a resident taxpayer is not capable of remedying the discriminatory effects of a tax rule applied specifically to non-residents who do not make that choice. (
                     14
                  ) The fact that Mr Kieback enjoyed that option but chose to be subject to the regime applicable to non-resident taxpayers in 2005 therefore does not render moot the question of whether denying him the deduction in issue entailed discrimination within the meaning of Article 39(2) EC.
            
         
         Does Article 39 EC preclude legislation such as that in issue in the main proceedings (Question 1)?
      
      
               24.
            
            
               It is settled case-law that Member States must exercise their competence in direct taxation in conformity with Community law and therefore avoid not only overt discrimination on grounds of nationality but also covert forms of discrimination which, by the application of other criteria of differentiation, lead in fact to the same result. (
                     15
                  )
            
         
               25.
            
            
               National rules under which a distinction is drawn on the basis of residence in that non-residents are denied certain benefits which are, conversely, granted to persons residing within national territory are liable to operate mainly to the detriment of nationals of other Member States, as non-residents are in the majority of cases foreigners. (
                     16
                  ) Tax benefits granted only to residents of a Member State may thus constitute indirect discrimination on grounds of nationality and hence be caught by the prohibition laid down in Article 39(2) EC. (
                     17
                  )
            
         
               26.
            
            
               Such discrimination can nevertheless arise only through the application of different rules to comparable situations or the application of the same rule to different situations. Answering Question 1 therefore requires examining whether Mr Kieback was in a situation comparable to that of either a taxpayer who resided and worked in the Netherlands during the first three months of 2005 and, like Mr Kieback, then moved to another State to take up new employment, or a taxpayer who resided (and worked) in the Netherlands throughout 2005. (
                     18
                  )
            
         
               27.
            
            
               The Court has consistently held, in relation to direct taxes, that residents and non-residents are in principle not comparable, since (i) income received by a non-resident in his State of employment is in most cases only part of his total income, which is concentrated at his place of residence, and (ii) a non-resident’s personal ability to pay tax, determined by reference to his aggregate income and his personal and family circumstances, is easier to assess at the place where his personal and financial interests are centered, which in general is the place where he has his usual abode. (
                     19
                  ) That finding is supported by international tax law, in particular the Model Tax Convention on Income and on Capital of the Organisation for Economic Cooperation and Development (OECD), which recognises that in principle the overall taxation of taxpayers, taking into account their personal and family circumstances, is a matter for the State of residence. (
                     20
                  )
            
         
               28.
            
            
               In so far as the situation of a non-resident is not comparable to that of a resident for the purpose of income taxes, it is of no relevance that the non-resident is taxed more heavily in the Member State where he does not reside than if he had resided there, because that State is not required to take into consideration his personal and family circumstances. (
                     21
                  ) The fact that a Member State denies a non-resident certain tax benefits which it grants to a resident is not, as a rule, discriminatory. (
                     22
                  )
            
         
               29.
            
            
               However, the position is different where the non-resident taxpayer receives no significant income in the State of his residence and obtains the major part of his taxable income from an activity performed in the State of employment, with the result that the State of residence is not in a position to grant him the benefits resulting from taking his personal and family circumstances into account. Since there is no objective difference in the State of employment between the situations of such a non-resident taxpayer and of a resident taxpayer engaged in comparable employment, the two categories of taxpayers have to be treated equally as regards taking their personal and family circumstances into account. (
                     23
                  ) In Renneberg, the Court specifically applied that reasoning to deduction in the Netherlands of the interest on a debt incurred to finance a personal dwelling, thereby confirming that such a debt is to be regarded as part of the personal and family circumstances relevant to assessing a taxpayer’s overall ability to pay tax. (
                     24
                  )
            
         
               30.
            
            
               Discrimination in relation to income tax as between resident and non-resident taxpayers is nevertheless not limited to situations where a non-resident taxpayer receives no significant income in his State of residence and derives all or almost all of his taxable income from an activity pursued in his State(s) of employment. (
                     25
                  ) More generally, denying non-residents a tax advantage which is granted to residents constitutes covert discrimination based on nationality where there is no objective difference between those categories of taxpayers such as to justify the difference in treatment. (
                     26
                  ) Here, I agree with Advocate General Léger that ‘the tax status of a non-resident must be eligible for the same treatment as that of [a] resident where he receives his income under exactly the same conditions as a resident’. (
                     27
                  )
            
         
               31.
            
            
               As the Commission correctly submits, Mr Kieback was objectively in a situation comparable to that of a resident taxpayer who concentrated all or almost all of his income in the Netherlands during the first three months of 2005, and then moved to another State where he took up new employment. Mr Kieback thus received his income in the Netherlands in 2005 under exactly the same conditions as such a resident taxpayer.
            
         
               32.
            
            
               It follows that, in principle, Article 39 EC and more particularly the non-discrimination rule contained in the second paragraph of that provision precluded the Netherlands from denying Mr Kieback the option which it granted taxpayers who resided and worked in that Member State during the first three months of 2005 and then moved elsewhere, namely to choose to be subject consecutively to the regimes applicable to resident and non-resident taxpayers in the course of a single tax year (Option 3). That denial restricted Mr Kieback’s freedom of movement since it was liable to discourage him from residing in a Member State other than the Netherlands for the period during which he received all or almost all of his income in that latter Member State. (
                     28
                  )
            
         
               33.
            
            
               It then becomes necessary to examine whether that difference in treatment can be justified. According to the Court’s case-law, a measure restricting one of the fundamental freedoms guaranteed by the Treaties may be accepted only if it pursues a legitimate objective which is compatible with the Treaties and is justified by overriding reasons in the public interest. That measure must be such as to ensure achievement of the aim pursued and not go beyond what is necessary for that purpose. (
                     29
                  )
            
         
               34.
            
            
               The Netherlands Government submits in essence that enabling a taxpayer in the situation of Mr Kieback to deduct from his taxable basis mortgage interest related to a dwelling in another Member State, attributable to the part of a tax year when he received all or almost all of his income in the Netherlands, would raise important practical difficulties. Much information would be required to determine whether and to what extent the Member State of employment had to take that taxpayer’s personal and family circumstances into consideration. The taxing authorities in that Member State would not normally possess that information.
            
         
               35.
            
            
               In my opinion, that argument cannot be a valid justification for the difference in treatment identified above.
            
         
               36.
            
            
               First, a Member State may rely upon Council Directive 77/799/EEC of 19 December 1977 concerning mutual assistance by the competent authorities of the Member States in the field of direct taxation and taxation of insurance premiums (
                     30
                  ) in order to obtain from the competent authorities of another Member State all the information enabling it to establish income taxes correctly, or all the information it considers necessary to ascertain the correct amount of the income tax payable by a taxpayer under the legislation which it applies. (
                     31
                  ) Second, the taxpayer himself may be in a position to provide relevant documentary evidence enabling the tax authorities of the Member State imposing the tax to ascertain, clearly and precisely, whether he satisfies the requirements for receiving the tax advantage in question. (
                     32
                  )
            
         
               37.
            
            
               I do not find the German Government’s arguments concerning the principle of territoriality in tax matters and the distribution of taxing powers more convincing.
            
         
               38.
            
            
               Concerning first the submission that no Member State should be required to grant deductions related to an activity which is not taxed on its territory, it is sufficient to observe that enabling Mr Kieback to be subject consecutively to the regimes applicable to resident and non-resident taxpayers in the Netherlands would not entail such a consequence. The only result would be to allow Mr Kieback to make the usual deductions from his taxable income in the Netherlands during the first three months of 2005, including thus deduction of mortgage interest related to his dwelling in Germany attributable to that period. The deduction would thus exclusively concern income which was taxable in the Netherlands.
            
         
               39.
            
            
               Nor do I share the German Government’s view that the difference in treatment identified above is necessary to avoid the possibility that personal and family circumstances will be taken into consideration in more than one State. Even assuming that such a risk were established, it would surely also exist in relation to persons who resided and worked in the Netherlands from 1 January 2005 until 31 March 2005 and then moved to another State where they took up new employment. Yet such persons can avail themselves of Option 3.
            
         
               40.
            
            
               I therefore take the view that the difference in treatment identified above is discriminatory within the meaning of 39(2) EC.
            
         
               41.
            
            
               Conversely, it is clear that the situations of Mr Kieback and of a person who resided (and worked) in the Netherlands throughout 2005 were not comparable. Although Mr Kieback received all or almost all of his income in that Member State between 1 January and 31 March 2005, he derived the major part of his tax income for that year in the United States, where he resided from 1 April 2005. There was thus a sufficient taxable basis in that latter State to enable Mr Kieback’s personal and family circumstances to be taken into consideration there. In the light of the case-law which I have set out above, (
                     33
                  ) the Netherlands was thus not required on this basis to grant Mr Kieback the same tax advantages related to his personal and family circumstances as those granted to a taxpayer who resided in that Member State throughout 2005. (
                     34
                  )
            
         
               42.
            
            
               Mr Kieback argues in that context that the mortgage interest related to his personal dwelling incurred between 1 January and 31 March 2005 could not give rise to any deduction in Germany (where there was not a sufficient taxable basis) or in the United States (because he did not reside there during those three months). Assuming that is true, those consequences would merely result from the parallel exercise of their taxing powers by various States. They cannot therefore have any bearing on the reasoning set out in the previous point. (
                     35
                  ) For the same reason, the outcome would be no different if the United States did not allow any deduction of mortgage interest related to a personal dwelling or if such deduction gave rise to a smaller tax advantage there than in the Netherlands.
            
         
         Does it matter, when answering Question 1, that the non-resident taxpayer moves to and takes up employment in a non-Member State rather than another Member State (Question 2)?
      
      
               43.
            
            
               I agree with all the parties which have submitted observations that the answer to Question 2 is ‘No’.
            
         
               44.
            
            
               EU free movement principles apply to the facts in the main proceedings because, from 1 January to 31 March 2005, Mr Kieback resided in one Member State and was employed in another Member State. (
                     36
                  ) In this context, Article 39 EC precluded the Netherlands from applying rules entailing discrimination on grounds of nationality to Mr Kieback when assessing his liability to income tax. The fact that Mr Kieback moved in the course of that year to a non-Member State rather than a Member State had no bearing on that prohibition.
            
         
         Conclusion
      
      
               45.
            
            
               For all the above reasons, I suggest that the Court should rule as follows in answer to the questions raised by the Hoge Raad der Nederlanden:
               
                        (1)
                     
                     
                        Article 39 EC (now Article 45 TFEU) precludes national legislation such as that at issue in the main proceedings, pursuant to which a non-resident taxpayer who receives all or almost all of his income in a Member State during the first three months of the tax year and then moves to another State, where he takes up new employment, cannot choose to be subject consecutively to the regimes applicable to resident and non-resident taxpayers in the course of that year, and therefore deduct mortgage interest related to a personal dwelling attributable to those first three months, if that option is available for a taxpayer who resides and works in that Member State during the first three months of the tax year and then moves to another State to take up new employment for the remainder of the tax year.
                     
                  
                        (2)
                     
                     
                        The circumstance that the non-resident taxpayer has gone to live and work in a non-Member State rather than a Member State during the course of the tax year has no bearing on the answer to Question 1.
                     
                  
         (
            1
         )	Original language: English.
      (
            2
         )	I shall refer to Article 39 EC in what follows, as that was the applicable Treaty article at the time of the facts in the main proceedings.
      (
            3
         )	Judgment in Schumacker, C‑279/93, EU:C:1995:31, paragraphs 31 to 37.
      (
            4
         )	See, inter alia, the judgments in Gschwind, C‑391/97, EU:C:1999:409, paragraph 22, and Commission v Estonia, C‑39/10, EU:C:2012:282, paragraph 49.
      (
            5
         )	The order for reference did not provide detailed information on the provisions of Netherlands law relevant to the main proceedings. The present section, which reflects national law applicable at the material time, is thus largely based on information provided by the Commission in its written observations.
      (
            6
         )	On the basis of the material before the Court, it is not clear whether such a person would be permitted to opt for non-resident status for the full tax year.
      (
            7
         )	According to the order for reference, if it had been taken into account in the Netherlands, that deduction would have amounted to EUR 10779 (that is to say the advantage derived by Mr Kieback from occupying his own dwelling minus the mortgage interest he paid for that dwelling).
      (
            8
         )	See, inter alia, the judgment in Ritter-Coulais, C‑152/03, EU:C:2006:123, paragraph 31.
      (
            9
         )	See points 8 to 10 above.
      (
            10
         )	Mr Kieback submits that, since 1 January 2015, Option 3 has been made available to non-resident taxpayers who fulfil certain conditions.
      (
            11
         )	Judgment in Schumacker, C‑279/93, EU:C:1995:31.
      (
            12
         )	Up to the date (20 June 2005) on which he sold his house in Germany (and presumably, therefore, cleared the mortgage): see point 12 above.
      (
            13
         )	Including thus on income received in the United States, subject to the Convention between the United States and the Netherlands, signed on 18 December 1992, for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income.
      (
            14
         )	C‑440/08, EU:C:2010:148, paragraph 54.
      (
            15
         )	See, inter alia, the judgments in Schumacker, C‑279/93, EU:C:1995:31, paragraphs 21 and 26, and Meindl, C‑329/05, EU:C:2007:57, paragraph 21 and the case-law cited.
      (
            16
         )	Judgment in Schumacker, C‑279/93, EU:C:1995:31, paragraph 28.
      (
            17
         )	Judgment in Schumacker, C‑279/93, EU:C:1995:31, paragraph 29.
      (
            18
         )	See points 19 to 22 above.
      (
            19
         )	See, inter alia, the judgments in Schumacker, C‑279/93, EU:C:1995:31, paragraph 32, and Meindl, C‑329/05, EU:C:2007:57, paragraph 23.
      (
            20
         )	OECD Committee on Fiscal Affairs, 1977 (version of the Convention of 22 July 2010). See the judgments in Schumacker, C‑279/93, EU:C:1995:31, paragraph 32, and Gschwind, C‑391/97, EU:C:1999:409, paragraph 24. See more particularly, concerning taxes on income from employment, Article 15 of the OECD Model Tax Convention.
      (
            21
         )	Judgment in D., C‑376/03, EU:C:2005:424, paragraph 41.
      (
            22
         )	Judgments in Schumacker, C‑279/93, EU:C:1995:31, paragraphs 31 and 34, Gschwind, C‑391/97, EU:C:1999:409, paragraph 22, and Commission v Estonia, C‑39/10, EU:C:2012:282, paragraph 49.
      (
            23
         )	See, inter alia, the judgments in Schumacker, C‑279/93, EU:C:1995:31, paragraphs 36 and 37, and Lakebrink and Peters-Lakebrink, C‑182/06, EU:C:2007:452, paragraph 30.
      (
            24
         )	C‑527/06, EU:C:2008:566, paragraphs 65 to 68 and 71.
      (
            25
         )	See, to that effect, the judgment in Renneberg, C‑527/06, EU:C:2008:566, paragraph 61, where the Court made it clear that discrimination is liable to arise ‘particularly’ (but thus not exclusively) in such situations.
      (
            26
         )	See, inter alia, the judgments in Asscher, C‑107/94, EU:C:1996:251, paragraphs 45 to 49, Talotta, C‑383/05, EU:C:2007:181, paragraph 19 and the case-law cited, and Gielen, C‑440/08, EU:C:2010:148, paragraph 44. In Asscher, a case concerning freedom of establishment (Article 49 TFEU), the Court held that resident and non-resident taxpayers in the Netherlands were in comparable situations with regard to the rule of progressivity of tax rates and that, therefore, applying a higher tax rate to the income of non-residents who received less than 90% of their worldwide income in the Netherlands (thus not covered in principle by the exception identified in Schumacker) constituted indirect discrimination based on nationality.
      (
            27
         )	Opinion of Advocate General Léger in Schumacker, C‑279/93, EU:C:1994:391, point 83.
      (
            28
         )	Of course, on the facts here, Mr Kieback moved not to another Member State but to a third country (the United States). I shall consider that aspect later (see points 43 and 44 below).
      (
            29
         )	See, inter alia, the judgments in Turpeinen, C‑520/04, EU:C:2006:703, paragraph 32, Renneberg, C‑527/06, EU:C:2008:566, paragraph 81, and Imfeld and Garcet, C‑303/12, EU:C:2013:822, paragraph 64.
      (
            30
         )	OJ 1977 L 336, p. 15.
      (
            31
         )	See the judgments in Wielockx, C‑80/94, EU:C:1995:271, paragraph 26, and Renneberg, C‑527/06, EU:C:2008:566, paragraph 78 and the case-law cited.
      (
            32
         )	See, most recently, the judgment in Petersen and Petersen, C‑544/11, EU:C:2013:124, paragraph 52 and the case-law cited.
      (
            33
         )	See points 27 to 29 above.
      (
            34
         )	That is of course without prejudice to the conclusion which I have drawn in point 40 above.
      (
            35
         )	See, in this respect, the judgment in D., C‑376/03, EU:C:2005:424, paragraph 41.
      (
            36
         )	See point 18 above.