Benoît Sauvage and Kristel Lejeune v État belge.
Date: 2018-10-24
17


In that connection, it must be stated that the Court admittedly does not have jurisdiction, under Article 267 TFEU, to rule on a possible infringement, by a contracting Member State, of provisions of bilateral conventions entered into by the Member States, which are designed to eliminate or to mitigate the negative effects of the coexistence of national tax regimes. Nor may the Court examine the relationship between a national measure and the provisions of a double taxation convention, such as the bilateral tax convention at issue in the main proceedings, since that question does not fall within the scope of the interpretation of EU law (judgment of 16 July 2009, Damseaux, C‑128/08, EU:C:2009:471, paragraph 22).
18


However, when a tax scheme under a convention for the avoidance of double taxation forms part of the legal framework applicable to a case and has been presented as such by the national court, the Court must take it into account in order to give an interpretation of EU law which will be of use to the national court (judgment of 19 January 2006, Bouanich, C‑265/04, EU:C:2006:51, paragraph 51).
22


According to settled case-law, in the absence of unifying or harmonising measures for the elimination of double taxation at EU level, the Member States retain competence for determining the criteria for taxation on income and capital with a view to eliminating double taxation by means, inter alia, of international agreements. In that context, the Member States are free to determine, in the framework of bilateral conventions for the avoidance of double taxation, the connecting factors for the purpose of allocating powers of taxation (judgment of 12 December 2013, Imfeld and Garcet, C‑303/12, EU:C:2013:822, paragraph 41 and the case-law cited).
23


To that end, it is not unreasonable for the Member States to use the criteria followed in international tax practice (see, to that effect, judgments of 12 May 1998, Gilly, C‑336/96, EU:C:1998:221, paragraph 31, and of 16 July 2009, Damseaux, C‑128/08, EU:C:2009:471, paragraph 30 and the case-law cited).
24


However, the allocation of powers of taxation mentioned in paragraph 22 of this judgment does not allow Member States to apply measures contrary to the freedoms of movement guaranteed by the FEU Treaty. As far as concerns the exercise of the power of taxation so allocated by bilateral conventions for the avoidance of double taxation, the Member States must comply with EU rules and, more particularly, observe the principle of equal treatment (judgments of 12 December 2002, de Groot, C‑385/00, EU:C:2002:750, paragraph 94, and of 12 December 2013, Imfeld and Garcet, C‑303/12, EU:C:2013:822, paragraph 42 and the case-law cited).
27


As has been stated in paragraph 22 of this judgment, Member States are free to determine the connecting factors for the purpose of allocating powers of taxation. Consequently, the mere fact that it has been decided to make the taxing power of the State of the source of the income dependent on the physical presence of a resident in the territory of that State does not constitute discrimination or different treatment prohibited by virtue of the free movement of workers (see, to that effect, judgment of 12 May 1998, Gilly, C‑336/96, EU:C:1998:221, paragraph 30).
28


Moreover, the objective of a convention for the avoidance of double taxation is to prevent the same income from being taxed in each of the contracting parties to that convention; it is not to ensure that the tax to which the taxpayer is subject in one contracting State is no higher than that to which he or she would be subject in the other contracting State (judgment of 19 November 2015, Bukovansky, C‑241/14, EU:C:2015:766, paragraph 44 and the case-law cited). Therefore, a less favourable tax treatment, which stems from the allocation of powers of taxation between the Kingdom of Belgium, as the State of residence of the taxpayer, and the Grand Duchy of Luxembourg, as the State of the source of the employment income concerned, and from the differences existing between the tax schemes of those two States, cannot be regarded as constituting discrimination or a difference in treatment prohibited by virtue of the free movement of workers.
34


Indeed, in the first place, it is inherent in the principle of the fiscal autonomy of Member States that they determine the evidence that must be provided and the material and formal conditions which must be respected to obtain a tax advantage (see, to that effect, judgments of 30 June 2011, Meilicke and Others, C‑262/09, EU:C:2011:438, paragraph 37, and of 9 October 2014, van Caster, C‑326/12, EU:C:2014:2269, paragraph 47).
35


Member States’ tax authorities are thus entitled to require the taxpayer to provide the evidence that they consider necessary for a correct application of the tax and for the purpose of determining whether the conditions for a tax advantage provided for by the tax scheme concerned are fulfilled and, consequently, whether that advantage must be granted (see, to that effect, judgments of 30 June 2011, Meilicke and Others, C‑262/09, EU:C:2011:438, paragraph 45, and of 9 October 2014, van Caster, C‑326/12, EU:C:2014:2269, paragraph 52).