Discrimination and restriction. Art. 2 of the AFMP provides for the principle of equal treatment, under which any nationals of one Contract- ing State who are lawfully resident in the territory of another Contracting State are not subject to any dis- crimination on the ground of nationality. This clause is self-executing.127 The Federal Tribunal held that Art. 2 of the AFMP is construed in accordance with Art. 12 of the EC Treaty.128 Art. 7(a) (economic activity and living, employment and working conditions) of the AFMP, Art. 9 (employed persons), Art. 15 (self-employed persons), Art. 19 (provision of services) and Art. 25 (purchase of immovable property) of Annex I and Art. 8(a) (coordi- nation of social security systems) of the AFMP contain specific principles of equal treatment as leges speciales to Art. 2.129 In particular, Art. 9(2) of Annex 1 of the AFMP states that an employed individual and the family members enjoy the same tax concession and welfare benefits as national employed persons and members of their family. Under Art. 15(2) of Annex 1 to the AFMP, this also applies to self-employed persons. Art. 9(2) of Annex 1 of the AFMP is construed in accordance with Art. 7(2) of Regulation (EEC) No. 1612/68.130 It appears that the ECJ uses the term “principle of equal treatment” as generic term and from this derives that the rules regarding equal treatment forbid not only “overt discrimination”, but also “covert discrimination”.131 Tak- ing account of this case law, the Federal Tribunal held that the principle of equal treatment of the AFMP pro- hibits not only overt discrimination on grounds of nationality, but also covert discrimination that, by the application of other criteria of differentiation, has the same result.132 In respect of income taxation, the ECJ argued that there is a risk that the criterion of residence works, in particular, against taxpayers who are nationals of other Member States.133 In the author’s view, it is immaterial that the term “restriction” is expressly referred to only in Art. 17(a) of Annex I of the AFMP in connection with the freedom of services, as the EC law concept of restriction has already been established in Xxxxxx decided on 15 December 1995 and, therefore, before the date of signature of the AFMP. Specifically, in the Austrian case noted in 4.2., the Independent Finance Court referred to Xxxxxx and held that the free move- ment of workers as enshrined in the AFMP also forbids “restrictions”.134 The question arises as to whether or not Art. 2 ...
