61968J0023

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1 . PRIVILEGES AND IMMUNITIES - ECSC PROTOCOL - SINGLE PROTOCOL FOR THE THREE COMMUNITIES - PRELIMINARY RULING ON INTERPRETATION - IDENTICAL OBJECTIVE

( PROTOCOL ON THE PRIVILEGES AND IMMUNITIES OF THE ECSC, ARTICLE 16; PROTOCOL ON THE PRIVILEGES AND IMMUNITIES OF THE COMMUNITIES, ARTICLE 30; EEC TREATY, ARTICLE 177; EAEC TREATY, ARTICLE 150 )

2 . AMENDMENT OF LEGISLATION - SILENCE OF THE LEGISLATURE - CONTINUITY OF LEGAL SYSTEM - PRINCIPLE COMMON TO THE LEGAL SYSTEMS OF MEMBER STATES

3 . OFFICIALS OF THE ECSC - PRIVILEGES AND IMMUNITIES - EXEMPTION FROM NATIONAL TAXES - EXTENT

( PROTOCOL ON THE PRIVILEGES AND IMMUNITIES OF THE ECSC, ARTICLE 11 )

4 . OFFICIALS OF THE ECSC - PRIVILEGES AND IMMUNITIES - EXEMPTION FROM NATIONAL TAXES - CONTRIBUTION INTENDED TO FINANCE A SOCIAL SECURITY SCHEME - NO EXEMPTION

( PROTOCOL ON THE PRIVILEGES AND IMMUNITIES OF THE ECSC, ARTICLE 11 )

1 . ARTICLE 16 OF THE FORMER ECSC PROTOCOL AND ARTICLE 30 OF THE TREATY ESTABLISHING A

SINGLE COUNCIL AND A SINGLE COMMISSION WHICH MAKE

ARTICLE 177 OF THE EEC TREATY AND ARTICLE 150 OF THE

EAEC TREATY APPLICABLE TO THE FIRST-NAMED TREATY HAVE AN IDENTICAL OBJECTIVE, NAMELY TO ENSURE A UNIFORM INTERPRETATION AND APPLICATION IN THE SIX MEMBER STATES OF THE PROVISIONS RELATING TO THE PRIVILEGES AND IMMUNITIES OF THE COMMUNITIES .

2 . IN ACCORDANCE WITH A PRINCIPLE COMMON TO THE LEGAL SYSTEMS OF THE MEMBER STATES, THE ORIGINS OF WHICH MAY BE TRACED BACK TO ROMAN LAW, WHEN LEGISLATION IS AMENDED, UNLESS THE LEGISLATURE EXPRESSES A CONTRARY INTENTION, CONTINUITY OF THE LEGAL SYSTEM MUST BE ENSURED .

3 . ARTICLE 11(B ) OF THE PROTOCOL ON THE PRIVILEGES AND IMMUNITIES OF THE ECSC REFERS TO NATIONAL TAXES ON SALARIES AND EMOLUMENTS IN WHATEVER FORM AND UNDER WHATEVER NAME THEY LEVIED .

4 . A CONTRIBUTION INTENDED TO FINANCE A SOCIAL SECURITY SCHEME DOES NOT CONSTITUTE A TAX WITHIN THE MEANING OF ARTICLE 11(B ) OF THE PROTOCOL ON THE PRIVILEGES AND IMMUNITIES OF THE ECSC EVEN IF SUCH A CONTRIBUTION IS LEVIED IN A MANNER RESEMBLING THE LEVYING OF TAXES .

IN CASE 23/68

REFERENCE TO THE COURT BY THE SECOND CHAMBER OF THE GERECHTSHOF ( FISCAL CHAMBER ), THE HAGUE, FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

JOHANNES GERHARDUS KLOMP, AN OFFICIAL OF THE EUROPEAN COAL AND STEEL COMMUNITY, RESIDING AT THE HAGUE,

AND

INSPEKTIE DER BELASTINGEN, FIRST DIVISION, THE HAGUE, ON THE INTERPRETATION OF ARTICLE 11(B ) OF THE PROTOCOL ON THE PRIVILEGES AND IMMUNITIES OF THE EUROPEAN COAL AND STEEL COMMUNITY,

1-2 THE GERECHTSHOF, THE HAGUE, BY LETTER DATED 24 SEPTEMBER 1968, RECEIVED AT THE REGISTRY ON 26 SEPTEMBER, HAS REQUESTED THE COURT TO GIVE A PRELIMINARY RULING ON THE INTERPRETATION OF ARTICLE 11(B ) OF THE PROTOCOL ON THE PRIVILEGES AND IMMUNITIES OF THE EUROPEAN COAL AND STEEL COMMUNITY . THE QUESTION IS WHETHER THE WORDS " ALL TAXES ON SALARIES AND EMOLUMENTS PAID BY THE COMMUNITY " ( ARTICLE 11(B ) OF THE PROTOCOL ) INCLUDE THE CONTRIBUTION CHARGED ON THE BASIS OF INCOME UNDER THE NETHERLANDS GENERAL LAW ON OLD AGE .

A - THE JURISDICTION OF THE COURT

3-5 THE GERECHTSHOF, THE HAGUE, BASES ITS REQUEST TO THE COURT FOR A PRELIMINARY RULING ON THE DISPUTED POINT OF LAW RELATING TO " THE RELEVANT PROVISIONS OF THE TREATY ESTABLISHING THE EUROPEAN COAL AND STEEL COMMUNITY ". THE RULES RELATING TO JURISDICTION IN FORCE AT THE TIME OF THE CONTRIBUTION PERIOD TO WHICH THE CASE PENDING BEFORE THE GERECHTSHOF RELATES ( 1959 ) BY VIRTUE OF ARTICLE 41 OF THE TREATY ESTABLISHING THE EUROPEAN COAL AND STEEL COMMUNITY PROVIDED FOR A PROCEDURE FOR PRELIMINARY RULINGS ONLY IN RESPECT OF QUESTIONS RELATING TO THE VALIDITY OF THE ACTS OF CERTAIN INSTITUTIONS OF THE COMMUNITY BUT NOT IN RESPECT OF QUESTIONS RELATING TO THE INTERPRETATION OF THE PROVISIONS OF THAT TREATY . HOWEVER, ARTICLE 16 OF THE PROTOCOL ON THE PRIVILEGES AND IMMUNITIES OF THE ECSC CONFERRED ON THE COURT A WIDER JURISDICTION IN RELATION TO ALL DISPUTES CONCERNING THE INTERPRETATION OR THE APPLICATION OF THAT PROTOCOL .

6-11 THE LEGAL POSITION AT THE TIME OF THE FACTS GIVING RISE TO THE CASE BEFORE THE GERECHTSHOF, THE HAGUE, WAS CHANGED BY THE TREATY OF 8 APRIL 1965 ESTABLISHING A SINGLE COUNCIL AND A SINGLE COMMISSION OF THE EUROPEAN COMMUNITIES . BY VIRTUE OF THIS TREATY THE PROTOCOL ON THE PRIVILEGES AND IMMUNITIES OF THE ECSC WAS REPLACED BY THE PROTOCOL ON THE PRIVILEGES AND IMMUNITIES OF THE EUROPEAN COMMUNITIES . ARTICLE 13(2 ) OF THAT PROTOCOL IN SUBSTANCE RE-ENACTS THE PROVISIONS OF ARTICLE 11(B ) OF THE PROTOCOL ON THE PRIVILEGES AND IMMUNITIES OF THE ECSC, WHEREAS THE NEW PROTOCOL DID NOT RE-ENACT ARTICLE 16 OF THE PROTOCOL ON THE PRIVILEGES AND IMMUNITIES OF THE ECSC . ON THE OTHER HAND, ARTICLE 30 OF THE TREATY OF 8 APRIL 1965 PROVIDED FOR THE EXTENSION TO THE SAID TREATY AND TO THE PROTOCOL ANNEXED THERETO OF THE PROVISIONS OF THE TREATIES ESTABLISHING THE EUROPEAN ECONOMIC COMMUNITY AND THE EUROPEAN ATOMIC ENERGY COMMUNITY CONCERNING THE JURISDICTION OF THE COURT OF JUSTICE AND THE EXERCISE OF THAT JURISDICTION . HENCE, AT THE TIME WHEN THE GERECHTSHOF, THE HAGUE, ASKED THE COURT OF JUSTICE FOR A PRELIMINARY RULING, THE PROVISIONS OF ARTICLE 177 OF THE TREATY ESTABLISHING THE EEC AND OF ARTICLE 150 OF THE TREATY ESTABLISHING THE EAEC WERE EXTENDED TO THE PROVISION NOW GOVERNING THE QUESTION WHICH FORMS THE SUBJECT-MATTER OF THE CASE PENDING BEFORE THE NATIONAL COURT .

12-14 THE PROCEDURE PROVIDED FOR BY ARTICLE 16 OF THE PROTOCOL ON THE PRIVILEGES AND IMMUNITIES OF THE ECSC, WHICH WAS APPLICABLE AT THE TIME WHEN THE DISPUTE AROSE, AND THE PROVISIONS ON PRELIMINARY RULINGS FOR INTERPRETATION OF THE TREATIES ESTABLISHING THE EEC AND THE EAEC HAVE AN IDENTICAL OBJECTIVE NAMELY TO ENSURE A UNIFORM INTERPRETATION AND APPLICATION OF THE PROVISIONS OF THE PROTOCOL IN THE SIX MEMBER STATES . IN ACCORDANCE WITH A PRINCIPLE COMMON TO THE LEGAL TO THE LEGAL SYSTEMS OF THE MEMBER STATES, THE ORIGINS OF WHICH MAY BE TRACED BACK TO ROMAN LAW, WHEN LEGISLATION IS AMENDED, UNLESS THE LEGISLATURE EXPRESSES A CONTRARY INTENTION, CONTINUITY OF THE LEGAL SYSTEM MUST BE ENSURED . ACCORDINGLY THE COURT HAS JURISDICTION TO GIVE A RULING ON THE REQUEST FOR INTERPRETATION .

B - SUBSTANCE

15 THE GERECHTSHOF, THE HAGUE, REQUESTS THE COURT TO INTERPRET THE WORDS " ALL TAXES ON SALARIES AND EMOLUMENTS PAID BY THE COMMUNITY " USED IN ARTICLE 11(B ), WHICH WAS APPLICABLE AT THE TIME WHEN THE CASE AROSE, WITH PARTICULAR REFERENCE TO THE CONTRIBUTION LEVIED ON SUCH INCOMES UNDER THE NETHERLANDS GENERAL LAW ON OLD AGE .

16-17 IT IS NOT FOR THE COURT, IN THE CONTEXT OF THE PRESENT PROCEDURE, TO APPRAISE, WITH REFERENCE TO THE SAID PROVISIONS OF COMMUNITY LAW, THE CHARACTERISTICS OF A CONTRIBUTION DUE UNDER THE LEGISLATION OF ONE OF THE MEMBER STATES OF THE COMMUNITY, SUCH A FUNCTION BEING RESERVED FOR THE NATIONAL COURT WHICH HAS TO APPLY COMMUNITY LAW TO THE CASE PENDING BEFORE IT . THE COURT DOES, HOWEVER, HAVE JURISDICTION TO INTERPRET THE RELEVANT PROVISIONS OF THE PROTOCOL ON THE PRIVILEGES AND IMMUNITIES WITH A VIEW TO ENABLING THE NATIONAL COURT TO APPLY THE PROVISIONS OF COMMUNITY LAW CORRECTLY TO THE DISPUTED CONTRIBUTION .

18-22 ARTICLE 11(B ) OF THE PROTOCOL ON THE PRIVILEGES AND IMMUNITIES REFERS TO NATIONAL TAXES ON SALARIES AND EMOLUMENTS IN WHATEVER FORM AND UNDER WHATEVER NAME THEY MAY BE LEVIED . IT IS HOWEVER A MATTER FOR CONSIDERATION IN CONNEXION WITH THE EXEMPTION CLAIMED WHETHER THE SAID SALARIES AND EMOLUMENTS ARE INDEED SUBJECT TO A TAX WITHIN THE MEANING OF THIS PROVISION . FOR THIS PURPOSE IT IS PROPER TO DISTINGUISH BETWEEN A TAX INTENDED TO PROVIDE FOR THE GENERAL EXPENSES OF PUBLIC AUTHORITIES AND A CONTRIBUTION INTENDED TO FINANCE A SOCIAL SECURITY SCHEME, EVEN IF SUCH A CONTRIBUTION IS LEVIED IN A MANNER RESEMBLING THE LEVYING OF TAXES . ACCORDINGLY WHEN SUCH A CONTRIBUTION IS ASSESSED ON THE BASIS OF THE INCOME OF THE PERSON CONCERNED THERE IS NO OBJECTION TO SALARIES AND EMOLUMENTS PAID BY THE COMMUNITY BEING TAKEN INTO ACCOUNT IN DETERMINING THE BASIS OF ASSESSMENT . HOWEVER, THIS FINDING LEAVES OPEN THE QUESTION, WHICH HAS NOT BEEN SUBMITTED TO THE COURT, WHETHER AN EXEMPTION FROM THE DISPUTED CONTRIBUTION MIGHT NOT RESULT FROM EITHER COMMUNITY OR NATIONAL PROVISIONS INTENDED TO AVOID COMPULSORY AFFILIATION OF OFFICIALS OF THE EUROPEAN COMMUNITIES TO A NATIONAL SCHEME OF SOCIAL SECURITY, IN SO FAR AS THEY ARE ALREADY AUTOMATICALLY SUBJECT TO A CORRESPONDING SCHEME ESTABLISHED BY THE COMMUNITIES .

23-24 THE COSTS INCURRED BY THE GOVERNMENT OF THE KINGDOM OF THE NETHERLANDS AND THE COMMISSION OF THE EUROPEAN COMMUNITIES WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT ARE NOT RECOVERABLE AND AS THESE PROCEEDINGS ARE, IN SO FAR AS THE PARTIES ARE CONCERNED, A STEP IN THE ACTION PENDING BEFORE THE GERECHTSHOF, THE HAGUE, THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

THE COURT

IN ANSWER TO THE QUESTION REFERRED BY THE THE SECOND CHAMBER OF THE GERECHTSHOF, THE HAGUE ( FISCAL CHAMBER ), HEREBY RULES :

A CONTRIBUTION INTENDED TO FINANCE A SOCIAL SECURITY SCHEME DOES NOT CONSTITUTE A TAX WITHIN THE MEANING OF ARTICLE 11(B ) OF THE PROTOCOL ON THE PRIVILEGES AND IMMUNITIES OF THE EUROPEAN COAL AND STEEL COMMUNITY EVEN IF SUCH A CONTRIBUTION IS LEVIED IN A MANNER RESEMBLING THE LEVYING OF TAXES .