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28.8.

2004 EN Official Journal of the European Union C 217/7

JUDGMENT OF THE COURT JUDGMENT OF THE COURT

(First Chamber) (First Chamber)

of 1 July 2004
of 8 July 2004

in Case C-169/03 (reference for a preliminary ruling from


the Regeringsrätten): Florian W. Wallentin v Riksskatte- in Case C-214/03: Commission of the European Commu-
verket (1) nities v Republic of Austria (1)

(Free movement of persons — Workers — Income tax — (Failure of a Member State to fulfil its obligations — Direc-
Restricted liability of a taxpayer receiving a small part of his tive 88/609/EEC — Air pollution — Large combustion
income in one Member State and residing in another Member plants)
State)

(2004/C 217/13)
(2004/C 217/12)

(Language of the case: Swedish) (Language of the case: German)

(Provisional translation; the definitive translation will be published in In Case C-214/03: Commission of the European Communities
the European Court Reports) (Agents: J.C. Schieferer and G. Valero Jordana) v Republic of
Austria (Agents: H. Dossi and E. Riedl) — application for a
declaration that, by failing to transpose correctly Council Direc-
tive 88/609/EEC of 24 November 1988 on the limitation of
emissions of certain pollutants into the air from large combus-
In Case C-169/03: Reference to the Court under Article 234 EC tion plants (OJ 1988 L 336, p. 1), in the version resulting from
from the Regeringsrätten (Sweden) for a preliminary ruling in Council Directive 94/66/EC of 15 December 1994 (OJ 1994 L
the proceedings pending before that court between Florian W. 337, p. 83), the Republic of Austria has failed to fulfil its obli-
Wallentin and Riksskatteverket — on the interpretation of gations under that amended directive — the Court (First
Article 39 EC — the Court (First Chamber), composed of: Chamber), composed of: P. Jann, President of the Chamber, A.
P. Jann (Rapporteur), President of the Chamber, A. La Pergola, Rosas, A. La Pergola, R. Silva de Lapuerta (Rapporteur) and K.
S. von Bahr, R. Silva de Lapuerta and K. Lenaerts, Judges; P. Lenaerts, Judges; M. Poiares Maduro, Advocate General; R.
Léger, Advocate General; R. Grass, Registrar, has given a judg- Grass, Registrar, has given a judgment on 8 July 2004, in
ment on 1 July 2004, in which it has ruled: which it:

Article 39 EC precludes a Member State's legislation from providing


that 1. Declares that the Republic of Austria has failed to fulfil its obliga-
tions under Article 2(6), (8), (9) and (10), Article 4(1) in
conjunction with Annexes III to VII, and Article 9(2) and (3) of
— natural persons who are not regarded as being resident for tax Council Directive 88/609/EEC of 24 November 1988 on the
purposes in that Member State, but who receive income there limitation of emissions of certain pollutants into the air from large
from employment, are subject to taxation levied at source such combustion plants, in the version resulting from Council Directive
that the basic allowance or any other allowance or deduction 94/66/EC of 15 December 1994,
linked to the taxpayer's personal circumstances is not granted,

— by having adopted, in Paragraph 22(1) of the Luftreinhalte-


— whereas taxpayers resident in that State are entitled to such allow- verordnung für Kesselanlagen (regulation on the abatement of
ances or deductions at the time of ordinary assessment to tax on air pollution from steam boiler installations), on the conserva-
their income received in that State and abroad, tion of air quality in the presence of boiler installations, a defi-
nition of ‘multi-fuel firing unit’ which departs from that set
out in Article 2(8) of the Directive,
— when the persons not resident in the State of taxation have had,
in their own State of residence, only income which, by its nature,
is not subject to income tax. — by failing to transpose in the relevant national legal provi-
sions, the Luftreinhaltegesetz für Kesselanlagen (law on the
abatement of air pollution from steam boiler installations) and
(1) OJ C 158 of 5.7.2003. the Luftreinhalteverordnung für Kesselanlagen, the definitions
of ‘new plant’ and ‘existing plant’ as set out in Article 2(9)
and (10) of the Directive,