X v Staatssecretaris van Financiën.
Date: 2017-02-09
22


In accordance with settled case-law, the freedom applicable to a resident of a Member State, whatever his nationality, who has a shareholding in the capital of a company established in another Member State that gives him definite influence over that company’s decisions, and allows him to determine its activities, is freedom of establishment (judgment of 18 December 2014, X, C‑87/13, EU:C:2014:2459, paragraph 21).
25


In order to answer that question, it must, first, be recalled that tax rules of national law must be consistent with EU law and, in particular, the freedoms guaranteed by the Treaties, including the freedom of establishment conferred by Article 49 TFEU (see, by analogy, judgment of 10 May 2012, Commission v Estonia, C‑39/10, EU:C:2012:282, paragraph 47).
26


Taking into account ‘negative income’ relating to immovable property located in the Member State where a taxpayer has chosen to be resident for tax purposes forms a tax advantage linked to his/her personal situation, which is relevant to the assessment of his/her overall ability to pay tax (see, to that effect, judgment of 18 June 2015, Kieback, C‑9/14, EU:C:2015:406, paragraph 19 and the case-law cited).
29


In that regard, it must be recalled that discrimination can arise only through the application of different rules to comparable situations or the application of the same rule to different situations (see, inter alia, judgments of 14 February 1995, Schumacker, C‑279/93, EU:C:1995:31, paragraph 30, and of 18 June 2015, Kieback, C‑9/14, EU:C:2015:406, paragraph 21).
30


In relation to direct taxes, the situations of non-residents and of residents are generally not comparable, because the income received in the territory of a Member State by a non-resident is in most cases only a part of his total income, which is concentrated at his place of residence, and because 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 centred, which in general is the place where he is habitually resident (see, inter alia, judgments of 14 February 1995, Schumacker, C‑279/93, EU:C:1995:31, paragraphs 31 and 32, and of 18 June 2015, Kieback, C‑9/14, EU:C:2015:406, paragraph 22).
31


Accordingly the Court held, in paragraph 34 of the judgment of 14 February 1995, Schumacker (C‑279/93, EU:C:1995:31), that the fact that a Member State does not grant to a non-resident certain tax benefits which it grants to a resident is not, as a rule, discriminatory, having regard to the objective differences between the situations of residents and of non-residents, both from the point of view of the source of their income and their personal ability to pay tax or their personal and family circumstances (see, also, judgment of 18 June 2015, Kieback, C‑9/14, EU:C:2015:406, paragraph 23).
32


There could be discrimination within the meaning of the FEU Treaty between residents and non-residents only if, notwithstanding their residence in different Member States, it was established that, having regard to the purpose and content of the national provisions in question, the two categories of taxpayers are in a comparable situation (see judgment of 14 September 1999, Gschwind, C‑391/97, EU:C:1999:409, paragraph 26).
33


One such case is where a non-resident taxpayer receives no significant income in the Member State where he resides and obtains the major part of his taxable income from an activity performed in another Member State, and consequently the Member State of residence is not in a position to grant him the benefits that result from taking into account his personal and family circumstances (see, inter alia, judgments of 14 February 1995, Schumacker, C‑279/93, EU:C:1995:31, paragraph 36; of 16 October 2008, Renneberg, C‑527/06, EU:C:2008:566, paragraph 61, and of 18 June 2015, Kieback, C‑9/14, EU:C:2015:406, paragraph 25).
34


In such a case, discrimination arises from the fact that the personal and family circumstances of a non-resident who receives the major part of his income and almost all his family income in a Member State other than that of his residence are taken into account neither in the Member State of residence nor in the Member State of employment (judgments of 14 February 1995, Schumacker, C‑279/93, EU:C:1995:31, paragraph 38; of 18 July 2007, Lakebrink and Peters-Lakebrink, C‑182/06, EU:C:2007:452, paragraph 31; and of 18 June 2015, Kieback, C‑9/14, EU:C:2015:406, paragraph 26).
35


In paragraph 34 of the judgment of 18 July 2007, Lakebrink and Peters-Lakebrink (C‑182/06, EU:C:2007:452), the Court explained that the scope of the case-law cited in paragraphs 27 to 32 of the present judgment extends to all the tax advantages connected with the non-resident’s ability to pay tax which are not granted either in the Member State of residence or in the Member State where a worker is employed (judgment of 18 June 2015, Kieback, C‑9/14, EU:C:2015:406, paragraph 27).
38


It is additionally necessary, in order to establish that such situations are objectively comparable, that, due to that non-resident’s receiving the major part of his income outside the Member State of residence, the Member State of residence is not in a position to grant him the advantages which accrue from taking into account his aggregate income and his personal and family circumstances (see, by analogy, judgment of 18 June 2015, Kieback, C‑9/14, EU:C:2015:406, paragraph 28).
46


As regards the first part of the second question, on the allocation between a number of Member States, classifiable as a ‘Member State of activity’, of the obligation that arises where the personal and family circumstances of the taxpayer are to be taken into account, that issue must be addressed by referring to the Court’s settled case-law on the allocation by the Member States of their power to impose taxes (see, inter alia, judgment of 12 December 2002, de Groot, C‑385/00, EU:C:2002:750, paragraph 93 and the case-law cited).
47


It follows, in particular, that the freedom of the Member States, in the absence of unifying or harmonising measures adopted under EU law, to allocate among themselves their powers to impose taxes, in particular to avoid the accumulation of tax advantages, must be reconciled with the necessity that taxpayers of the Member States concerned are assured that, ultimately, all their personal and family circumstances will be duly taken into account, irrespective of how the Member States concerned have allocated that obligation amongst themselves. Were such reconciliation not to take place, the freedom of Member States to allocate the power to impose taxes among themselves would be liable to create inequality of treatment of the taxpayers concerned which, since that inequality would not be the result of disparities between the provisions of national tax law, would be incompatible with freedom of establishment (see, to that effect, judgment of 12 December 2013, Imfeld and Garcet, C‑303/12, EU:C:2013:822, paragraphs 70 and 77).
51


It must, in that regard, be recalled that as regards the obligation, stemming from the provisions of the FEU Treaty relating to freedom of establishment, not to discriminate against a self-employed person who performs a professional activity within a Member State other than that where he is resident, those provisions must be interpreted as meaning that all Member States are subject to that obligation. There can be no other interpretation in a situation such as that at issue in the main proceedings, with respect to a Member State within which a self-employed person residing in another Member State has performed part of his activities, while carrying out the remainder of his activities within a third State, even if the latter is not a Member State, but a non-Member State (see, by analogy, judgment of 18 June 2015, Kieback, C‑9/14, EU:C:2015:406, paragraph 35).
55


The fourth question is consequently hypothetical, and therefore inadmissible (see judgment of 29 January 2013, Radu, C‑396/11, EU:C:2013:39, paragraph 24).