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Databáze č. 17 : Databáze judikatury
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Číslo (Kód CELEX):
Number (CELEX Code):		61988J0175
Název:
Title: 		JUDGMENT OF THE COURT (FIFTH CHAMBER) OF 8 MAY 1990. KLAUS BIEHL V ADMINISTRATION DES CONTRIBUTIONS. REFERENCE FOR A PRELIMINARY RULING: CONSEIL D' ETAT - GRAND-DUCHE DE LUXEMBOURG. FREE MOVEMENT OF WORKERS - DISCRIMINATION - RESIDENCE CONDITION IMPOSED BY NATIONAL LEGISLATION FOR OBTAINING A TAX REFUND. CASE 175/88.
Publikace:
Publication:		REPORTS OF CASES 1990 PAGES I-1779
Předmět (klíčová slova):
Keywords		FREE MOVEMENT OF WORKERS;
Související předpisy:
Corresponding acts:		157E048
Odkaz na souvisejicí judikáty:
Corresponding Judgements:
    Schumacker Case C-279/93 Finanzamt Köln-Altstadt v Schumacker [1995] ECR I-225
    · Sotgiu Case 152/73 Sotgiu v Deutsche Bundespost [1974] ECR 153
    · O’Flynn Case C-237/94 O’Flynn v Adjudication Officer [1996] ECR I-2617
Plný text:
Fulltext:		Ne

Fakta:
Mr Biehl is a German national who was resident in the Grand Duchy of Luxembourg from 15 November 1973 to 31 October 1983, where he pursued an activity as an employed person. On 1 November 1983, he moved to the Federal Republic of Germany where he now works. For the period from 1 January to 31 October 1983 Mr Biehl’s Luxembourg employer deducted sums by way of income tax from Mr Biehl’s salary. It emerged from Mr Biehls final tax assessment for the year of assessment 1983 that the amount deducted by his Luxembourg employer exceeded the total amount of his liability to tax. The bureau d’imposition de Luxembourg (Tax Office, Luxembourg, “the tax office”), however, refused Mr Biehl’s request to repay the overdeduction of income tax, relying on a provision of the Income Tax Law according to which amounts duly deducted from salaries and wages become the property of the Treasury and are not repayable if the taxpayer resides in Luxembourg only part of the year because he takes up residence in the country or leaves it during the course of the year.
Mr Biehl challenged that decision and the relevant provision of the national law before the Conseil d’État du Luxembourg claiming that it was covertly discriminatory against individuals from other Member States and thus incompatible with Community law. The administration des contributions du grand-duché of Luxembourg (Tax Office, Luxembourg, “the tax office”) argued that the provision was justified on objective grounds because it was intended to protect the system of progressive taxation: A temporarily resident taxpayer spread his income, and consequently his tax liability, among different States; if his income for part of the year in each State of residence would be assessed as if it were the total income for the year, the temporarily resident taxpayer would - under the progressive tax system - be taxed more favourably than a taxpayer who resided in Luxembourg for the whole year. In addition, the tax office pointed out that under Luxembourg law, a non-contentious procedure was available for temporarily resident taxpayer to obtain repayment of an overdeduction of tax by adducing unfair consequences which the Income Tax Law entailed for them.
The Conseil d’État stayed the proceedings and under Article 177 of the Treaty referred to the Court of Justice the question whether the provisions of the Income Tax Law relating to temporarily resident taxpayers was compatible with Articels 7, 48 of the EEC Treaty.

Názor soudu a komentář:
Article 48(2) of the Treaty prohibits any discrimination on the basis of nationality between workers of the Member States, particularly with regard to remuneration. “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. For that reason the Council laid down in Article 7 of Regulation (EEC) No 1612/68
Of 15 October 1968 on freedom of movement for workers within the Community (OJ, English Special Edition 1968 (II), p. 475).
that workers who are nationals of a Member State are to enjoy, in the territory of another Member State, the same tax advantages as national workers.” Article 48(2) thus prohibits discrimination also in respect of income taxation (see also
Schumacker
). It prohibits not only overt discrimination but also covert forms (indirect discrimination) which, by applying facially neutral criteria, results in a disadvantage of nationals of other Member States (
Sotgiu
).
The provisions of the Luxembourg Income Tax law here at issue are indirectly discriminatory because, although they apply without distinction to both Luxembourg nationals as well as nationals from other Member States, they are likely to affect mostly the latter because it is often such persons who will in the course of the year leave the country or take up residence there (for the determination of indirect discrimination see also
O’Flynn
).
The regulations concerning temporarily resident taxpayers cannot be justified on the grounds advanced by the tax office. While the Court (apparently) accepts the objective of protecting the progressive system of taxation, it rejects the regulation chosen by the Income Tax Law on the ground that it “is liable to infringe the principle of equal treatment in various situations”. In particular, it denies a temporary taxpayer the benefit of the progressive taxation also in the case where, upon leaving Luxembourg in the course of the year, obtains no income at his new place of residence for the rest of the assessment year; in such a case, the temporarily resident taxpayer is treated less favourably than a resident taxpayer. The non-contentious procedure to obtain repayment are no adequate compensation either because under the relevant rules the tax administration has no obligation to remedy in every case the discriminatory consequences arising from the rules concerning temporarily resident taxpayers.

Shrnutí (Summary of the Judgment):
ARTICLE 48(2) OF THE TREATY PRECLUDES A MEMBER STATE FROM PROVIDING IN ITS TAX LEGISLATION THAT SUMS DEDUCTED BY WAY OF TAX FROM THE SALARIES AND WAGES OF EMPLOYED PERSONS WHO ARE NATIONALS OF A MEMBER STATE AND ARE RESIDENT TAXPAYERS FOR ONLY PART OF THE YEAR BECAUSE THEY TAKE UP RESIDENCE IN THE COUNTRY OR LEAVE IT DURING THE COURSE OF THE TAX YEAR ARE TO REMAIN THE PROPERTY OF THE TREASURY AND ARE NOT REPAYABLE.

Plný text judikátu (Entire text of the Judgment):