Charles Kohll and Sylvie Kohll-Schlesser v Directeur de l'administration des contributions directes.
Date: 2016-05-26
22


In that regard, it should be borne in mind that any national of the European Union who, irrespective of his place of residence and his nationality, has exercised the right to freedom of movement of workers and who has been employed in a Member State other than that of his residence comes within the scope of Article 45 TFEU (judgment of 28 February 2013 in Petersen, C‑544/11, EU:C:2013:124, paragraph 34 and the case-law cited).
25


The Court has held that the fact that a person is no longer in an employment relationship does not deny him certain guaranteed rights which are linked to the status of a worker and that a retirement pension, whose grant is dependent on the prior existence of an employment relationship which has come to an end, falls within that category of rights. The pension entitlement is intrinsically linked to the objective status of a worker (see, to that effect, judgment of 15 June 2000 in Sehrer, C‑302/98, EU:C:2000:32, paragraph 30 and the case-law cited).
26


The situation of a taxpayer such as Mr Kohll, receiving a pension paid in consideration of employment carried out in a Member State other than that of which he is a national and in which he resides at the time of the facts in the main proceedings, is different from that of a person who has spent his entire working life in a Member State of which he is a national and who has only exercised the right to reside in another Member State after having retired, and who cannot therefore rely on the free movement guaranteed by Article 45 TFEU (see, to that effect, judgment of 9 November 2006 in Turpeinen, C‑520/04, EU:C:2006:703, paragraph 16).
35


According to the settled case-law of the Court, in order to provide a useful reply to the court which has referred to it a question for a preliminary ruling, the Court may be required to take into consideration rules of EU law to which the national court did not refer in its questions (judgment of 28 February 2013 in Petersen, C‑544/11, EU:C:2013:124, paragraph 24 and the case-law cited).
36


As regards, first, Article 45 TFEU, it should be borne in mind that 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 (judgment of 28 February 2013 in Petersen, C‑544/11, EU:C:2013:124, paragraph 36 and the case-law cited).
42


As regards, second, Article 21 TFEU, it is apparent from the settled case-law of the Court that a national law which places certain nationals at a disadvantage simply because they have exercised their freedom to move and to reside in another Member State constitutes a restriction on the freedoms conferred by Article 21(1) TFEU on every citizen of the European Union (judgment of 26 February 2015 in Martens, C‑359/13, EU:C:2015:118, paragraph 25 and the case-law cited).
43


Indeed, the opportunities offered by the Treaty in relation to freedom of movement for citizens of the Union cannot be fully effective if a national of a Member State could be dissuaded from using them by obstacles resulting from his stay in another Member State because of legislation of his State of origin penalising the mere fact that he has used those opportunities (judgment of 26 February 2015 in Martens, C‑359/13, EU:C:2015:118, paragraph 26 and the case-law cited).
45


Such restrictions are permissible only if they relate to situations which are not objectively comparable or if they are justified by an overriding reason in the public interest (see, inter alia, judgment of 17 December 2015 in Timac Agro Deutschland, EU:C:2015:829, C‑388/14, paragraph 26).
46


As regards whether the situations at issue are objectively comparable, it must be recalled that the comparability of a cross-border situation with an internal situation must be examined having regard to the aim pursued by the national provisions at issue (see, to that effect, judgments of 25 February 2010 in X Holding, C‑337/08, EU:C:2010:89, paragraph 22, and 6 September 2012 in Philips Electronics UK, C‑18/11, EU:C:2012:532, paragraph 17).
49


The restriction can therefore be justified only by overriding reasons in the public interest. It is further necessary, in such a case, that the restriction be appropriate for ensuring the attainment of the objective that it pursues and not go beyond what is necessary to attain it (judgment of 17 December 2015 in Timac Agro Deutschland, C‑388/14, EU:C:2015:829, paragraph 29 and the case-law cited).
53


As regards, in the first place, the administrative and practical considerations to which the Luxembourg Government makes reference, it must be borne in mind that the Court has in fact previously held that Member States cannot be denied the possibility of attaining legitimate objectives through the introduction of rules which are easily managed and supervised by the competent authorities (judgment of 24 February 2015 in Sopora, C‑512/13, EU:C:2015:108, paragraph 33 and the case-law cited).
54


However, it is important to bear in mind that what is being disputed in the main proceedings is neither the system based on deduction at source nor the appropriate and practical nature of the issue of the tax deduction form, but rather the absolute refusal to grant a tax advantage where the taxpayer concerned is unable to produce such a document, even if he satisfies the other conditions required in order to be eligible for that advantage.
55


It cannot be excluded a priori that a taxpayer is able to provide relevant documentary evidence enabling the tax authorities of the Member State of taxation to ascertain, clearly and precisely, the nature and genuineness of the income arising from pensions in another Member State (see, by analogy, judgment of 27 January 2009 in Persche, C‑318/07, EU:C:2009:33, paragraph 53).
56


Nothing would prevent the tax authorities concerned from requiring that taxpayer to provide such proof as they may consider necessary in order to determine whether the conditions for granting that advantage provided for in the legislation at issue have been met and, consequently, whether to allow the advantage sought (see, by analogy, judgment of 27 January 2009 in Persche, C‑318/07, EU:C:2009:33, paragraph 54).
59


In any event, it should be noted that the Court has already held that practical difficulties cannot of themselves justify the infringement of a fundamental freedom guaranteed by the Treaty (judgment of 1 July 2010 in Dijkman and Dijkman-Lavaleije, C‑233/09, EU:C:2010:397, paragraph 60 and the case-law cited).
60


In the second place, although the need to maintain the cohesion of a tax system can justify a restriction on the exercise of fundamental freedoms guaranteed by the Treaty, in order for an argument based on such a justification to succeed, the Court requires that a direct link be established between the tax advantage concerned and the offsetting of that advantage by a particular tax levy, with the direct nature of that link falling to be examined in the light of the objective pursued by the legislation at issue (see, to that effect, judgment of 1 July 2010 in Dijkman and Dijkman-Lavaleije, C‑233/09, EU:C:2010:397, paragraphs 54 and 55 and the case-law cited).