Judgment of the Court (First Chamber) of 30 May 2024 (request for a preliminary ruling from the Finanzgericht Köln – Germany) – AB v Finanzamt Köln-Süd

(Case C-627/22,  (1) Finanzamt Köln-Süd (Voluntary assessment requested by a partially taxable person))

(Reference for a preliminary ruling - Agreement between the European Union and the Swiss Confederation on the free movement of persons - Worker from a Member State who has transferred his residence to Switzerland - Tax concessions - Income tax - ‘Voluntary assessment’ mechanism - Taxpayers who may benefit therefrom - Restriction to partially taxable employed persons resident in a Member State or in a State party to the Agreement on the European Economic Area (EEA) - Equal treatment)

(C/2024/4291)

Language of the case: German

Referring court

Finanzgericht Köln

Parties to the main proceedings

Applicant: AB

Defendant: Finanzamt Köln-Süd

Operative part of the judgment

Articles 7 and 15 of the Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons, signed in Luxembourg on 21 June 1999, as last adapted by the Protocol of 4 March 2016 regarding the participation of the Republic of Croatia as a Contracting Party, following its accession to the European Union, read in conjunction with Article 9(2) of Annex I to that agreement,

must be interpreted as precluding legislation of a Member State that reserves to taxpayers who are nationals of that Member State, of another Member State or of a State party to the Agreement on the European Economic Area of 2 May 1992 and who reside in the territory of one of those States the right to opt for a voluntary assessment procedure in respect of income from employment in order to have expenses such as occupational expenses taken into account and to have the wage tax that has been withheld in the withholding tax procedure offset, which may lead to an income tax refund, and that does not confer such a right of option on, inter alia, a national of the first Member State who resides in Switzerland and who receives income from employment in that Member State.

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(1)   OJ C 15, 16.1.23.