Language of document : ECLI:EU:C:2010:148

Case C-440/08

F. Gielen

v

Staatssecretaris van Financiën

(Reference for a preliminary ruling from the Hoge Raad der Nederlanden)

(Direct taxation – Article 43 EC – Non-resident taxable person – Business operator – Right to a self-employed person’s deduction – Hours test – Discrimination between resident and non‑resident taxable persons – Option to be treated as a resident taxable person)

Summary of the Judgment

Freedom of movement for persons – Freedom of establishment – Tax legislation – Income tax

(Art. 49 TFEU)

Article 49 TFEU precludes national legislation that, in relation to the granting of a tax advantage, such as a self‑employed person’s deduction for those who have worked a certain number of hours as a business operator, is discriminatory towards non‑resident taxable persons whose hours worked for an establishment situated in another Member Stare are not taken into account for that purpose, even though those taxable persons may opt for the regime applicable to resident taxable persons in order to benefit from that tax advantage.

That national legislation which, for the purposes of such a tax advantage uses an ‘hours test’ in such a way as to prevent non‑resident taxable persons from including hours worked in another Member State, may well operate primarily to the detriment of those taxable persons. Consequently, such legislation constitutes indirect discrimination on grounds of nationality for the purposes of Article 49 TFEU. That conclusion is not called into question by the fact that an option of being treated as a resident taxable person is available to non-resident taxable persons enabling them to choose between the discriminatory tax regime and the regime applicable to residents, for such a choice is not capable of remedying the discriminatory effects of the first of these two tax regimes. If such a choice were to be recognised as having the effect described, the consequence would be to validate a tax regime which, in itself, remains contrary to Article 49 TFEU by reason of its discriminatory nature. In addition, a national scheme that restricts freedom of establishment still remains incompatible with European Union law even if its application is optional. Consequently, the choice offered to non‑resident taxable persons by means of the option of being treated as resident taxable persons does not serve to neutralise the discrimination established.

(see paras 48-55, operative part)