Theodor Schilling and Angelica Fleck-Schilling v Finanzamt Nürnberg-Süd.
Date: 2003-11-13
19. In that regard, it must be recalled that the Court may of its own motion, on a proposal from the Advocate General or at the request of the parties, order that the oral procedure be reopened in accordance with Article 61 of its Rules of Procedure, if it considers that it lacks sufficient information, or that the case must be dealt with on the basis of an argument which has not been debated between the parties (see, inter alia, Case C-299/99  Philips  [2002] ECR I-5475, paragraph 20, and Case C-184/01 P  Hirschfeldt  v  EEA  [2002] ECR I-10173, paragraph 30).
21. By the four questions which it has submitted, which it is appropriate to examine together, the Bundesfinanzhof is in substance asking whether Community law, in particular Article 48 of the Treaty and Article 14 of the Protocol, precludes a situation in which Community officials of German origin who are resident in Luxembourg and have incurred expenditure in respect of a household assistant in the latter Member State are unable to deduct that expenditure from their taxable income in Germany by reason of the fact that the contributions paid in respect of the household assistant were paid to the Luxembourg statutory pension insurance scheme and not to the German scheme.
22. As a preliminary point, it should be noted that, although direct taxation falls within the competence of the Member States, the latter must none the less exercise that competence in accordance with Community law and must therefore avoid any overt or covert discrimination on the basis of nationality (see, inter alia, Case C-385/00  De Groot  [2002] ECR I-11819, paragraph 75).
23. Any Community national who, irrespective of his place of residence and his nationality, has exercised the right to freedom of movement for workers and who has been employed in a Member State other than that of residence falls within the scope of Article 48 of the Treaty ( De Groot , cited above, paragraph 76).
24. It is, moreover, settled case-law that all of the Treaty provisions relating to the freedom of movement for persons are intended to facilitate the pursuit by Community nationals of occupational activities of all kinds throughout the Community, and preclude measures which might place Community nationals at a disadvantage when they wish to pursue an economic activity in the territory of another Member State (Case C-370/90  Singh  [1992] ECR I-4265, paragraph 16; Case C-18/95  Terhoeve  [1999] ECR I-345, paragraph 37; Case C-190/98  Graf  [2000] ECR I-493, paragraph 21; and Case C-302/98  Sehrer  [2000] ECR I-4585, paragraph 32).
25. In that regard, provisions which prevent or deter a national of a Member State from leaving his State of origin to exercise his right to freedom of movement constitute an obstacle to that freedom even if they apply without regard to the nationality of the workers concerned (see, inter alia, Case C-232/01  Van Lent  [2003] ECR I-11525, paragraph 16).
26. Thus, even if, according to their wording, the rules on freedom of movement for workers are intended, in particular, to secure the benefit of national treatment in the host State, they also preclude the State of origin from obstructing the freedom of one of its nationals to accept and pursue employment in another Member State (see, inter alia,  De Groot , paragraph 79).
27. Consequently, the fact that Mr and Mrs Schilling are German nationals cannot prevent them from relying on the rules on free movement of workers as against the Member State of which they are nationals, since they have exercised their right to freedom of movement and worked in another Member State (see, to that effect,  De Groot , paragraph 80).
28. It should also be borne in mind that, according to settled case-law, a Community national working in a Member State other than his State of origin does not lose his status of worker within the meaning of Article 48(1) of the Treaty by virtue of the fact that he occupies a post within an international organisation, even if the rules relating to his entry into and residence in the country in which he is employed are specifically governed by an international agreement (Joined Cases 389/87 and 390/87  Echternach and Moritz  [1989] ECR 723, paragraph 11; Case C-310/91  Schmid  [1993] ECR I-3011, paragraph 20; and Case C-411/98  Ferlini  [2000] ECR I-8081, paragraph 42).
29. It must, however, be pointed out that officials and other servants of the European Communities are subject to special rules in matters of taxation that distinguish them from other workers.
31. In accordance with Article 14 of the Protocol, the Member State of origin, in which the domicile of the official or servant is maintained for tax purposes, remains in principle competent to tax all other income of those persons and to subject that income to wealth tax and death duties.  The officials and servants covered by Article 14 of the Protocol are for that reason entitled to apply for the tax deductions that are provided for by the national taxation scheme of the Member St ate of origin and that are not connected to their salaries as Community officials or servants.
41. Second, it should be noted that the Court has held that the need to safeguard the cohesion of a tax system may justify rules that are liable to restrict fundamental freedoms (see Case C-204/90  Bachmann  [1992] ECR I-249, paragraph 28; Case C-300/90  Commission  v  Belgium  [1992] ECR I-305, paragraph 21; and  De Groot , paragraph 106) if there is a direct link, in the case of one and the same taxpayer, between the grant of a tax advantage and the offsetting of that advantage by a fiscal levy, both of which relate to the same tax (see Case C-35/98  Verkooijen  [2000] ECR I-4071, paragraph 57, and Case C-136/00  Danner  [2002] ECR I-8147, paragraph 36).