CJEU - C 122/15 / Opinion Preliminary Ruling Request from the Finnish Administrative Court

Key facts of the case:

  1. The present case may open a new chapter in the influence of EU law on the income tax legislation of the Member States. In the context of a reference from the highest Finnish administrative court, the Court is asked to answer the important question of whether the prohibition of age discrimination laid down in EU law also affects national income tax legislation.
  2. For it is that prohibition that is being relied on by a Finnish taxpayer who is subject to a supplementary tax levied in Finland exclusively on income from retirement pensions. Is the EU-law prohibition of discrimination on the ground of age, which is governed by the Charter of Fundamental Rights of the European Union and a directive, applicable at all in such a case and, if so, does it prevent a Member State from imposing a higher rate of taxation on retirement pension income?
  3. The question of whether the EU-law prohibition of age discrimination is applicable to the income tax legislation of the Member States forms the subject-matter of another case currently pending before the Court. Although that case, originating in the Netherlands, concerns an entirely different provision of income tax law, it nevertheless underscores the importance of the guidance which the Court is called upon to provide in the present case.

Results (sanctions) and key consequences of the case:

  1. In the light of all the foregoing, the answer to the questions referred by the Korkein hallinto-oikeus (Supreme Administrative Court) should be as follows: 

National legislation such as Paragraph 124(1) and (4) of the Finnish Law on income tax, which provides for a supplementary tax on pension income, is not to be assessed by reference to the EU-law prohibition of discrimination on the ground of age as laid down in Article 21(1) of the Charter of Fundamental Rights of the European Union and in Directive 2000/78/EC.

Paragraphs referring to EU Charter: 
  1. In the present case, the taxation of the taxpayer’s retirement pension might constitute a restriction of a fundamental freedom and thus fall within the scope of the Charter. After all, the pension received by the taxpayer in 2013 derives at least in part from an activity which he previously carried on in a Member State other than the Republic of Finland. To that extent, the fact that that pension is taxed in Finland may constitute a restriction of the taxpayer’s freedom of movement as a worker.

...

  1. Although the taxation in Finland of a pension received by the taxpayer which he acquired at least in part on account of employment in Sweden is prejudicial to the exercise of his freedom of movement as a worker, there is nonetheless no restriction of that fundamental freedom as defined by previous case-law. This states that a national measure in the field of tax law is regarded as being liable to hinder or render less attractive the exercise of a fundamental freedom only where it distinguishes between domestic and cross-border activity. On the other hand, the levying of a direct tax, without distinction, in domestic and cross-border situations — as in the present case of a uniform rate of tax applicable to all income derived from a retirement pension — cannot restrict the fundamental freedoms.
  2. Consequently, in so far as it levies income tax on income from a retirement pension, the Republic of Finland is not implementing EU law in the present case. By extension, therefore, the prohibition of discrimination on the ground of age laid down in Article 21(1) of the Charter is not directly applicable in the dispute in the main proceedings, in accordance with the first sentence of Article 51(1) of the Charter.