38Consequently, where, in an agreement on double taxation concluded between the Member States, the criterion of nationality appears in a provision which is intended to allocate fiscal sovereignty, such differentiation based on nationality cannot be regarded as constituting prohibited discrimination (judgment in Gilly, C‑336/96, EU:C:1998:221, paragraph 30). As regards, by contrast, the exercise of fiscal sovereignty granted by such a provision, the Member State in which that sovereignty is vested must observe the principle of equal treatment.
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