Pirkko Marjatta Turpeinen.
Date: 2006-11-09
13. Article 18 EC, which sets out generally the right of every citizen of the Union to move and reside freely within the territory of the Member States, finds specific expression in Article 39 EC in relation to freedom of movement for workers (see Case C-100/01 Oteiza Olazabal  [2002] ECR I-10981, paragraph 26). It is therefore necessary to ascertain first whether the main case falls within the scope of Article 39 EC.
14. The Court has held on many occasions that the provisions of the EC Treaty relating to freedom of movement for persons are intended to facilitate the pursuit by Community nationals of occupational activities of all kinds throughout the Community, and preclude measures which might place Community nationals at a disadvantage when they wish to pursue an economic activity in the territory of another Member State (Case C-18/95 Terhoeve  [1999] ECR I-345, paragraph 37; Case C-302/98 Sehrer  [2000] ECR I-4585, paragraph 32; and Case C-109/04 Kranemann  [2005] ECR I-2421, paragraph 25).
15. National provisions which preclude or deter a national of a Member State from leaving his country of origin in order to exercise his right to freedom of movement therefore constitute an obstacle to that freedom even if they apply without regard to the nationality of the workers concerned ( Terhoeve , paragraph 39; Sehrer , paragraph 33; and Kranemann , paragraph 26).
16. However, as the Advocate General observed in point 60 of his Opinion, persons who have carried out all their occupational activity in the Member State of which they are nationals and who have exercised the right to reside in another Member State only after their retirement, without any intention of working in that State, cannot rely on the freedom of movement guaranteed by Article 39 EC. It appears that that is Ms Turpeinen’s situation, having regard to the facts in the main proceedings as set out in the order for reference.
17. Since the main case is not covered by Article 39 EC, it is appropriate to rule on the applicability of Article 18 EC.
18. According to settled case-law, the status of citizen of the Union is destined to be the fundamental status of nationals of the Member States, enabling those among such nationals who find themselves in the same situation to enjoy the same treatment in law irrespective of their nationality, subject to such exceptions as are expressly provided for in that regard (see, in particular, Case C-184/99 Grzelczyk  [2001] ECR I-6193, paragraph 31, and Case C-224/02 Pusa  [2004] ECR I-5763, paragraph 16).
19. Situations falling within the scope of Community law include those involving the exercise of the fundamental freedoms guaranteed by the Treaty, in particular those involving the freedom to move and reside within the territory of the Member States, as conferred by Article 18 EC (see, in particular, Grzelczyk , paragraph 33, and Pusa , paragraph 17).
20. Inasmuch as a citizen of the Union must be granted in all Member States the same treatment in law as that accorded to nationals of those Member States who find themselves in the same situation, it would be incompatible with the right to freedom of movement were a citizen to receive in the Member State of which he is a national treatment less favourable than he would enjoy if he had not availed himself of the opportunities offered by the Treaty in relation to freedom of movement (see Case C-224/98 D’Hoop  [2002] ECR I-6191, paragraph 30, and Pusa , paragraph 18).
21. Those opportunities could not be fully effective if a national of a Member State could be deterred from availing himself of them by obstacles placed in the way of his stay in the host Member State by legislation in his State of origin penalising the fact that he has used them ( Pusa , paragraph 19).
22. National legislation which places some of its nationals at a disadvantage simply because they have exercised their freedom to move and to reside in another Member State would give rise to inequality of treatment, contrary to the principles which underpin the status of citizen of the Union, that is, the guarantee of the same treatment in law in the exercise of the citizen’s freedom to move ( Pusa , paragraph 20).
23. Since Ms Turpeinen has exercised her rights to freedom of movement and residence conferred by Article 18(1) EC, she may rely on that provision as against her State of origin.
26. It is true that, in relation to direct taxes, the Court has accepted that the situations of residents and of non-residents are not, as a rule, comparable (Case C-279/93 Schumacker  [1995] ECR I-225, paragraph 31).
27. Thus with regard to income tax the Court has held that the situation of a resident differs from that of a non-resident in so far as the major part of the resident’s income is normally concentrated in the State of residence. Moreover, that State generally has all the information needed to assess the taxpayer’s overall ability to pay tax, taking account of his personal and family circumstances ( Schumacker , paragraph 33, and Case C-376/03 D  [2005] ECR I-5821, paragraph 27).
28. However, the Court has also accepted that a non-resident taxpayer, whether employed or self-employed, who receives all or almost all of his income in the State where he works is objectively in the same situation so far as concerns income tax as a resident of that State who does the same work there. Both are taxed in that State alone and their taxable income is the same (Case C-80/94 Wielockx  [1995] ECR I-2493, paragraph 20).
29. That reasoning applies mutatis mutandis  in a situation such as that in the main proceedings, where a retirement pension constitutes the taxable income.
32. The difference of treatment resulting from rules such as those at issue in the main proceedings could be justified only if it were based on objective considerations proportionate to the legitimate aim of the national provisions (see, to that effect, Pusa , paragraph 20).
36. In that connection, it should be recalled that Council Directive 77/799/EEC of 19 December 1977 concerning mutual assistance by the competent authorities of the Member States in the field of direct taxation (OJ 1977 L 336, p. 15) enables a Member State to obtain from the competent authorities of another Member State all the information enabling it to determine the correct amount of income tax or all the information it considers necessary to ascertain the correct amount of income tax payable by a taxpayer according to the legislation which it applies (Case C‑422/01 Skandia and Ramstedt  [2003] ECR I-6817, paragraph 42 and the case‑law cited).
37. Moreover, according to Council Directive 76/308/EEC of 15 March 1976 on mutual assistance for the recovery of claims relating to certain levies, duties, taxes and other measures (OJ 1976 L 73, p. 18), in the version resulting from Council Directive 2001/44/EC of 15 June 2001 (OJ 2001 L 175, p. 17), a Member State may request assistance from another Member State in relation to the recovery of income tax payable by a taxpayer resident in the latter Member State.