Jean Jacob and Dominique Lennertz v État belge.
Date: 2019-03-14
19


However, as the Court has held, it is not thereby precluded from providing the national court with all those elements for the interpretation of EU law which may be of assistance in adjudicating on the case pending before it, whether or not that national court has specifically referred to them in its question (see, to that effect, inter alia, judgments of 21 February 2006, Ritter-Coulais, C‑152/03, EU:C:2006:123, paragraph 29, and of 23 April 2009, Rüffler, C‑544/07, EU:C:2009:258, paragraph 57).
21


According to settled case-law, freedom of establishment for nationals of one Member State on the territory of another Member State includes the right to take up and pursue activities as self-employed persons (see, inter alia, judgments of 28 January 1986, Commission v France, 270/83, EU:C:1986:37, paragraph 13; of 29 April 1999, Royal Bank of Scotland, C‑311/97, EU:C:1999:216, paragraph 22; and of 1 October 2009, Gaz de France — Berliner Investissement, C‑247/08, EU:C:2009:600, paragraph 54). By contrast, any national of the European Union 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 his residence comes within the scope of Article 45 TFEU (see, inter alia, judgments of 12 December 2002, de Groot, C‑385/00, EU:C:2002:750, paragraph 76, and of 28 February 2013, Petersen, C‑544/11, EU:C:2013:124, paragraph 34).
25


It must be recalled from the outset that, in accordance with settled case-law, although the Member States are at liberty, in the framework of bilateral agreements for the avoidance of double taxation, to determine the connecting factors for the purposes of allocating powers of taxation, that allocation of powers of taxation does not allow them to apply measures that are contrary to the freedoms of movement guaranteed by the Treaty. As far as concerns the exercise of the power of taxation thus allocated by bilateral conventions to prevent double taxation, the Member States must comply with EU rules (see, inter alia, judgments of 12 December 2002, de Groot, C‑385/00, EU:C:2002:750, paragraphs 93 and 94; of 12 December 2013, Imfeld and Garcet, C‑303/12, EU:C:2013:822, paragraphs 41 and 42; and of 22 June 2017, Bechtel, C‑20/16, EU:C:2017:488, paragraph 66) and, more particularly, observe the principle of equal treatment (see, to that effect, judgment of 12 December 2002, de Groot, C‑385/00, EU:C:2002:750, paragraph 94).
26


It should also be recalled that, according to the Court’s case-law, it is, in principle, a matter for the Member State of residence to grant the taxpayer all the tax advantages relating to his personal and family circumstances, because that State is, as a rule, best placed to assess the taxpayer’s personal ability to pay tax, determined by reference to his aggregate income and his personal and family circumstances, since that is where his personal and financial interests are centred (see, inter alia, judgments of 14 February 1995, Schumacker, C‑279/93, EU:C:1995:31, paragraph 32; of 18 July 2007, Lakebrink and Peters-Lakebrink, C‑182/06, EU:C:2007:452, paragraph 34; of 12 December 2013, Imfeld and Garcet, C‑303/12, EU:C:2013:822, paragraph 43; and of 22 June 2017, Bechtel, C‑20/16, EU:C:2017:488, paragraph 55).
27


The Court has also ruled that the Member State of residence cannot cause a taxpayer to forfeit part of his tax-free allowance and his personal tax advantages because, during the year in question, he also received income in another Member State which was taxed in that State without his personal and family circumstances being taken into account (judgment of 12 December 2002, de Groot, C‑385/00, EU:C:2002:750, paragraph 110).
30


It should be noted that the inclusion of exempt foreign income in the calculation of the Belgian tax rate, in the calculation of Belgian tax and in the tax base for the granting of tax advantages comes within the Kingdom of Belgium’s freedom to choose how to organise its tax system on the basis of the principle of fiscal autonomy and cannot be considered to be contrary to the free movement of workers provided that the effects of such inclusion does not amount to discriminatory treatment contrary to EU law (see, to that effect, judgment of 6 December 2007, Columbus Container Services, C‑298/05, EU:C:2007:754, paragraph 53). Such an inclusion does not, of itself, prevent ensuring the effective exemption of that income in accordance with EU law, where relevant by means of subsequent compensation.
43


The legislation at issue in the main proceedings thus establishes a difference in tax treatment between EU-citizen couples residing in the Kingdom of Belgium according to the source of their incomes — a difference which is liable to discourage those citizens from exercising the freedoms guaranteed by the Treaty, and, in particular, the free movement of workers guaranteed by Article 45 TFEU (see, to that effect, judgment of 12 December 2013, Imfeld and Garcet, C‑303/12, EU:C:2013:822, paragraph 51).
44


It is settled case-law that a measure which is liable to hinder the free movement of workers enshrined in Article 45 TFEU can be permissible only if it pursues a legitimate objective compatible with the Treaty and is justified by overriding reasons in the public interest. It is also necessary, in such a case, that its application be appropriate for ensuring the attainment of the objective thus pursued and not go beyond what is necessary to attain that objective (see, by analogy, judgment of 12 December 2013, Imfeld and Garcet, C‑303/12, EU:C:2013:822, paragraph 64 and the case-law cited).