Recently, the ECJ has stated in the Gielen case that the option to be treated as a resident taxable person – which provides non-resident taxable persons with a choice between a discriminatory treatment and one which is ostensibly not discriminatory – cannot remedy the discriminatory effect of the tax regime at issue. In order to take into account the taxpayer’s personal and family circumstances in a situation where the non-resident has no significant income in the state of residence and gains the main part of his taxable income from an activity in the state of employment, sec. 1 para. 4 of the Austrian Income Tax Act contains a similar option. However, such treatment remains contrary to Art. 49 TFEU due to its discriminatory character, unless the non-resident makes use of this option.