Keywords
Summary

Keywords

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1. Freedom of movement for persons ° Freedom of establishment ° Provisions of the Treaty ° Persons covered ° Non-resident national of a Member State pursuing activities as a self-employed person both in that State and in another Member State ° Included

(EC Treaty, Art. 52)

2. Freedom of movement for persons ° Freedom of establishment ° Fiscal legislation ° Income taxes ° Non-resident national of a Member State pursuing activities as a self-employed person both in that State and in another Member State ° Higher rate of tax than applicable to residents ° Not permissible ° Use of tax measures to offset absence of membership of, and absence of contribution to, the national social security scheme ° Not permissible

(EC Treaty, Art. 52; Council Regulation No 1408/71)

Summary

1. A national of a Member State pursuing an activity as a self-employed person in another Member State, in which he resides, may rely on Article 52 of the Treaty as against his State of origin, on whose territory he pursues another activity as a self-employed person, if, by virtue of pursuing an economic activity in a Member State other than his State of origin, he is, with regard to the latter, in a situation which may be regarded as equivalent to that of any other person relying as against the host Member State on the rights and liberties guaranteed by the Treaty.

2. Article 52 of the Treaty is to be interpreted as precluding one Member State from applying to a national of a Member State who pursues an activity as a self-employed person within its territory and at the same time pursues another activity as a self-employed person in another Member State, in which he resides, a higher rate of income tax than that applicable to residents pursuing the same activity where there is no objective difference between the situation of such taxpayers and that of taxpayers who are resident or treated as such to justify that difference in treatment. That is the case, inter alia, when the fact that a taxpayer is a non-resident does not enable him to escape the application of the rule of progressivity and both categories of taxpayer are therefore in comparable situations with regard to that rule.

Nor may a Member State take account, by means of a higher rate of income tax, of the fact that, by virtue of the provisions concerning the determination of the applicable legislation contained in Regulation No 1408/71 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, the taxpayer is not obliged to pay contributions to its national social insurance scheme. The fact that, also by virtue of Regulation No 1408/71, the taxpayer is insured under the social security scheme of the State in which he resides is irrelevant in that regard.