Staatssecretaris van Financiën v D.G. Kieback.
Date: 2015-06-18
19. It is not disputed, in the second place, that taking into account ‘negative income’ relating to immovable property located in the Member State of residence of the taxpayer concerned forms, as the Advocate General noted in paragraph 29 of her Opinion, a tax advantage connected with that taxpayer’s personal situation, which is relevant for the purposes of assessing his overall ability to pay tax (see, to that effect, judgments in Lakebrink and Peters-Lakebrink , C‑182/06, EU:C:2007:452, paragraph 34, and Renneberg , C‑527/06, EU:C:2008:566, paragraphs 65 to 67).
20. Against that background, it should be recalled, in relation to less favourable treatment restricted to non-residents under the relevant national law, that, as set out in Article 39(2) EC, freedom of movement for workers is to entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment. In particular, the Court has held that the principle of equal treatment with regard to remuneration would be rendered ineffective if it could be undermined by discriminatory national provisions on income tax (see, inter alia, judgments in Schumacker , C‑279/93, EU:C:1995:31, paragraph 23, and Sopora , C‑512/13, EU:C:2015:108, paragraph 22).
21. That being said, discrimination can arise only through the application of different rules to comparable situations or the application of the same rule to different situations (see, inter alia, judgments in Schumacker , C‑279/93, EU:C:1995:31, paragraph 30, and Talotta , C‑383/05, EU:C:2007:181, paragraph 18).
22. In relation to direct taxation, residents and non-residents are generally not in comparable situations because the income received in the territory of a Member State by a non-resident is in most cases only a part of his total income, which is concentrated at his place of residence, and because a non-resident’s personal ability to pay tax, determined by reference to his aggregate income and his personal and family circumstances, is easier to assess at the place where his personal and financial interests are centred, which in general is the place where he has his usual abode (see, inter alia, judgments in Schumacker , C‑279/93, EU:C:1995:31, paragraphs 31 and 32, and Grünewald , C‑559/13, EU:C:2015:109, paragraph 25).
23. Consequently, in paragraph 34 of the judgment in Schumacker (C‑279/93, EU:C:1995:31), the Court held that the fact that a Member State does not grant to a non-resident certain tax advantages which it grants to a resident is not, as a rule, discriminatory, having regard to the objective differences between the situations of residents and non-residents, from the point of view both of the source of their income and of their personal ability to pay tax or their personal and family circumstances (see, also, judgment in Grünewald , C‑559/13, EU:C:2015:109, paragraph 26).
24. There could be discrimination within the meaning of the EC Treaty between residents and non-residents only if, notwithstanding their residence in different Member States, it were established that, having regard to the purpose and content of the national provisions in question, the two categories of taxpayers are in a comparable situation (see judgment in Gschwind , C‑391/97, EU:C:1999:409, paragraph 26).
25. Such is the case particularly where a non-resident taxpayer receives no significant income in his Member State of residence and derives the major part of his taxable income from an activity pursued in the Member State of employment, so that the Member State of residence is not in a position to grant him the advantages which follow from the taking into account of his personal and family circumstances (see, inter alia, judgments in Schumacker , C‑279/93, EU:C:1995:31, paragraph 36; Lakebrink and Peters-Lakebrink , C‑182/06, EU:C:2007:452, paragraph 30; and Renneberg , C‑527/06, EU:C:2008:566, paragraph 61).
26. In such a case, discrimination arises from the fact that the personal and family circumstances of a non-resident who receives the major part of his income and almost all his family income in a Member State other than that of his residence are taken into account neither in the State of residence nor in the State of employment (judgements in Schumacker , C‑279/93, EU:C:1995:31, paragraph 38; Lakebrink and Peters-Lakebrink , C‑182/06, EU:C:2007:452, paragraph 31; and Renneberg , C‑527/06, EU:C:2008:566, paragraph 62).
27. In paragraph 34 of the judgment in Lakebrink and Peters-Lakebrink (C‑182/06, EU:C:2007:452), the Court stated that the scope of the case-law arising from the judgment in Schumacker  extends to all the tax advantages connected with the non-resident’s ability to pay tax which are granted neither in the State of residence nor in the State of employment (judgment in Renneberg , C‑527/06, EU:C:2008:566, paragraph 63).
28. Thus, in relation to such tax advantages connected with a particular taxpayer’s ability to pay tax, the mere fact that a non-resident has received, in the State of employment, income in the same circumstances as a resident of that State does not suffice to make his situation objectively comparable to that of a resident. It is additionally necessary, in order to establish that such situations are objectively comparable, that, due to that non-resident’s receiving the major part of his income in the Member State of employment, the Member State of residence is not in a position to grant him the advantages which follow from taking into account his aggregate income and his personal and family circumstances.
35. That conclusion is not called into question by the fact that the party concerned left his employment in a Member State in order to pursue his occupational activity, not in another Member State, but in a non-member State. As regards the obligation that it lays down not to discriminate against a worker who has pursued an occupational activity in a Member State other than that of his residence, Article 39(2) EC must be interpreted as meaning that that obligation applies to each Member State. That is the case in a situation such as that at issue in the main proceedings, with regard to the Member State in which the worker, although residing in another Member State, pursued his activity before going to pursue it in another State, even if the latter is not a Member State, but a non-member State.