Peter Radgen and Lilian Radgen v Finanzamt Ettlingen.
Date: 2016-09-21
27


According to the Court’s settled case-law, questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining, and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. The Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (judgment of 7 April 2016, KA Finanz, C‑483/14, EU:C:2016:205, paragraph 41 and the case-law cited).
32


As is apparent from paragraph 27 above, the national court is responsible for defining the factual and legislative context of the dispute before it. As the national court has classified Mr Radgen unequivocally as an ‘employed frontier worker’ within the meaning of Article 7 of Annex I to the Agreement, the Court must proceed on the basis that Mr Radgen has that status.
34


The Agreement on the free movement of persons distinguishes employed frontier workers in only one of its articles, namely Article 7 of Annex I thereto, and for a specific purpose, that is, as is apparent from Article 7 of Annex I in conjunction with Article 6 of that annex, to fix more favourable rules for such workers as regards the right of residence than those established for other employed persons falling within the scope of the Agreement (see, to that effect, judgment of 22 December 2008, Stamm and Hauser, C‑13/08, EU:C:2008:774, paragraph 39).
36


As is apparent from the preamble to and Articles 1 and 16(2) of the Agreement on the free movement of persons, the objective of the Agreement is to bring about, for the benefit of nationals of the European Union and of the Swiss Confederation, the free movement of persons in the territory of the contracting parties to that agreement based on the rules applying in the European Union, the terms of which must be interpreted in accordance with the case-law of the Court of Justice (judgment of 19 November 2015, Bukovansky, C‑241/14, EU:C:2015:766, paragraph 40).
37


In that context, it should be noted that that objective includes, pursuant to Article 1(a) and (d) of the Agreement, the objective of granting to those nationals, inter alia, a right of entry, residence, access to work as employed persons and the same living, employment and working conditions as those accorded to nationals of the individual states in question.
39


In that context, it should be recalled that Article 9 of Annex I to the Agreement on the free movement of persons, entitled ‘Equal treatment’, ensures the application of the principle of non-discrimination laid down in Article 2 of the Agreement in connection with the free movement of workers (judgment of 19 November 2015, Bukovansky, C‑241/14, EU:C:2015:766, paragraph 47).
40


Article 9(2) of Annex I to the Agreement establishes a specific rule intended to provide the employed person and the members of his family with the same tax concessions and welfare benefits as those available to national employed persons and members of their families. With regard to tax concessions, the Court has previously held that the principle of equal treatment, laid down in that provision, may also be relied on by a worker who is a national of a contracting party and has exercised his right to freedom of movement, with regard to his State of origin (judgment of 19 November 2015, Bukovansky, C‑241/14, EU:C:2015:766, paragraph 36 and the case-law cited).
45


Nevertheless, it is also necessary to bear in mind, first, Article 21(2) of that agreement, which permits taxpayers whose situations are not comparable, especially as regards their place of residence, to be treated differently for tax purposes.
46


Second, where tax payers are in a comparable situation, it follows from the Court’s established case-law on freedom of movement guaranteed by the Treaty that different treatment may nonetheless be justified by overriding reasons in the public interest. It would, however, also be necessary in such a case for the different treatment to be appropriate for ensuring attainment of the objective in question and not to go beyond what is necessary for that purpose (see, inter alia, judgments of 31 March 1993, Kraus, C‑19/92, EU:C:1993:125, paragraph 32 and the case-law cited, and 16 March 2010, Olympique Lyonnais, C‑325/08, EU:C:2010:143, paragraph 38 and the case-law cited).
47


As the principle of equal treatment is a concept of EU law (judgment of 6 October 2011, Graf and Engel, C‑506/10, EU:C:2011:643, paragraph 26), in order to ascertain whether there may be an instance of unequal treatment in the context of the Agreement on free movement of persons, it is necessary, as is apparent from paragraphs 36 above, to refer, by analogy, to the principles established by the Court’s case-law cited in paragraph 46 above.