CJEU - Recent Developments in Direct Taxation 2025

1. Background

The pending case, for which no Advocate General Opinion has been published yet, concerns a referral for a preliminary ruling by the Finanzgericht Köln (Financial Court of Cologne) on the guarantees under the EU-Swiss Agreement on the Free Movement of Persons (AFMP) as it pertains to the taxation of cross-border employees. The AFMP was concluded between the European Communities and its Member States on the one hand and the Swiss Confederation on the other, and forms part of the Union legal order (Arts. 216 and 217 TFEU). It is binding upon the institutions of the EU and its Member States (Art. 216 para. 2 TFEU). It lays down the principle of equal treatment between Swiss nationals employed in Germany and German domestic employed persons. Previous case law by the CJEU implies that there is a certain convergence of guarantees under AFMP and fundamental freedoms under TFEU/EEA-Agreement. However, such convergence is only limited. The provisions of Community law concerning the internal market cannot be automatically applied by analogy to the interpretation of the Agreement. Moreover, under Article 16(2) AFMP, only the CJEU’s case law prior to the date of signature of the AF...