CELEX: 61994CJ0191
Protocol on the Privileges and Immunities of the Communities
Additional motor insurance premiums

By judgment of 23 June 1994, received at the Court on 1 July 1994, the Tribunal de Première Instance (Court of First Instance),
Brussels, referred to the Court for a preliminary ruling under Article 177 of the EC Treaty three questions on the interpretation
of Article 3 of the Protocol on the Privileges and Immunities of the European Communities (hereinafter
the Protocol).
The questions were raised in proceedings between AGF Belgium SA (hereinafter
AGF) and the European Economic Community, the Institut National d'Assurance Maladie-Invalidité (National Sickness and Invalidity
Insurance Institution, hereinafter
INAMI), the Fonds National de Reclassement Social des Handicapés (National Rehabilitation Fund for the Handicapped, hereinafter
FNRSH, whose functions, after its liquidation in 1995, were taken over by INAMI), the Croix-Rouge de Belgique (Belgian Red Cross,
hereinafter
CRB) and the Belgian State, in connection with the payment of additional motor insurance premiums.
Article 3 of the Protocol is worded as follows: The Communities, their assets, revenues and other property shall be exempt from all direct taxes.The governments of the Member States shall, wherever possible, take the appropriate measures to remit or refund the amount
of indirect taxes or sales taxes included in the price of movable or immovable property, where the Communities make, for their
official use, substantial purchases the price of which includes taxes of this kind.  These provisions shall not be applied,
however, so as to have the effect of distorting competition within the Communities.No exemption shall be granted in respect of taxes and dues which amount merely to charges for public utility services.
Belgian legislation provides for compulsory additional motor insurance premiums to be paid for the benefit of FNRSH (Article
24 of the Law of 16 April 1963 and Royal Decrees of 5 July 1963, 23 October 1978 and 28 June 1984), INAMI (Article 121 of
the Law of 9 August 1963, as supplemented by Article 57 of the Law relating to the 1974-1975 Budgetary Proposals and by Article
31 of the Law of 26 June 1992, and Royal Decrees of 20 May 1976 and 20 July 1992) and CRB (Law of 7 August 1974 and Royal
Decree of 16 December 1974, as amended by Royal Decrees of 21 January 1976 and 20 March 1991).
The European Communities, which had concluded contracts with AGF for third party liability insurance for motor vehicles used
by various Community institutions, refused to pay the additional premiums provided for under the Belgian legislation, on the
grounds that the sums claimed on that basis represented national taxes from which they were exempt under Article 3 of the
Protocol.
AGF, which had had to advance the amount represented by the additional premiums to the recipient institutions, instituted
proceedings in the Tribunal de Première Instance, Brussels, for an order that either the EEC or the institutions in question
and the Belgian State jointly pay it the appropriate sums.
The Tribunal de Première Instance considered that the dispute turned on the interpretation of Article 3 of the Protocol and
accordingly decided to stay the proceedings and refer the following questions to the Court of Justice for a preliminary ruling:
1.
Is Article 3 of the Protocol to be interpreted as being applicable to charges which may be regarded under national [law] as
social contributions on the grounds that, although they are levied by the authorities and by law, they are not governed by
constitutional rules which provide that taxes are collected annually and apply universally, and are not paid to the Treasury
but are collected directly by the institutions responsible for using them?
2.
Is the third paragraph of Article 3 of the Protocol to be interpreted as being applicable to charges collected by way of additional
insurance premiums (in the present case motor vehicle third party liability insurance) for the benefit of public utility organizations
such as the INAMI, FNRSH or CRB, in view of the fact that there is a relationship, albeit indirect and potential, between
those charges and the service provided by those organizations?
3.
Is the second paragraph of Article 3 of the Protocol to be interpreted as being applicable to indirect taxes or dues levied
on services provided for the official use of the Communities, where substantial sums are involved?
First question
By its first question the national court wishes to ascertain whether the charges in question, which appear to that court to
have more in common with social contributions than with tax resources, in so far as they are not paid to the Treasury but
to the recipient institutions, must nevertheless be regarded as taxes or dues within the meaning of Article 3 of the Protocol.
The Commission proposes that the question should receive an affirmative reply.  It considers, in particular, that the charges
fulfil the criteria used by international organizations to define the term
tax, which extends to all compulsory payments made without consideration for the benefit of public authorities.  The Commission
also refers to the case-law of the Court of Justice, according to which special contributions for the benefit of public bodies
other than the State constitute internal taxation within the meaning of Article 95 of the Treaty.
INAMI, FNRSH and the Belgian Government, however, suggest a negative reply.  In their view, the additional premiums in question,
even though they are charged by an authority for the purpose of defraying charges for which the community is responsible,
are not intended to cover general expenses included in the State budget.  The charges are similar to social contributions
which, according to the case-law of the Court, do not constitute taxes, so that they do not fall within the scope of Article
3 of the Protocol.
That argument cannot be accepted.
It is true that, in interpreting certain provisions of the Protocol, the Court has distinguished 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 (see Case 23/68
Klomp
v
Inspektie der Belastingen
[1969] ECR 43, paragraphs 18 to 22).
That distinction has no relevance, however, in the circumstances described by the national court.
First, as the Commission points out, that judgment concerned the interpretation of provisions of the Protocol which exempt
officials and other servants of the Communities from national taxes on salaries, wages and emoluments paid to them.  That
exemption relates specifically to servants of the Communities and is limited to national taxes which could be charged on the
income arising from performance of their functions, which is subject to Community tax.  In the present case the provisions
of the Protocol in issue are those which exempt the Communities themselves from all direct taxes and provide, furthermore,
for the amount of indirect taxes or sales taxes included in purchases made by them in certain circumstances to be remitted
or refunded.
Secondly, as the Advocate General observed in points 21 and 22 of his Opinion, social bodies may be funded both by special
contributions and by taxation.  The mere fact that the additional premiums at issue in this case are intended to contribute
to such financing does not therefore mean that those supplements should be regarded as social contributions.
On the contrary, however they are described under national law, the charges in question cannot be treated as contributions
due from persons subject to a social security scheme or from members of a social insurance body.  It appears, in fact, from
the information contained in the national court's judgment that the additional premiums are payable by all those who take
out motor insurance, including those who are not covered in any respect by the recipient institutions; they are thus payable
regardless of whether the person concerned is subject to, or a member of, those bodies.
In the light of those considerations, charges of that type must be regarded as compulsory contributions for the benefit of
public interest institutions.  It may be noted, moreover, that the additional premiums in question appear as such in the Report
of the Office Belge de Contrôle des Assurances (Belgian Insurance Inspectorate) annexed to the Commission's observations,
which lists the different taxes and contributions linked to insurance.
As the Commission states, contributions of that kind constitute internal taxation as referred to in the fiscal provisions
of the Treaty.  According to the case-law of the Court, the fact that a tax or levy is collected by a body governed by public
law other than the State or is collected for its benefit and is a charge which is special or appropriated for a specific purpose
cannot prevent its falling within the scope of those provisions (see Case 74/76
Iannelli & Volpi
v
Meroni
[1977] ECR 557, paragraph 19).
In accordance with Article 28 of the Treaty establishing a Single Council and a Single Commission of the European Communities,
to which the Protocol is annexed, the European Communities are to enjoy in the territories of the Member States such privileges
and immunities as are necessary for the performance of their tasks.  The fiscal immunity granted to them in that connection,
in order in particular to ensure their independence with regard to the Member States and their proper functioning, is defined
by the Protocol in very broad terms.  Thus Article 3 provides not only that the Communities, their assets, revenues and other
property shall be exempt from all direct taxes, but also that the Member States are to remit or refund the amount of indirect
taxes or sales taxes included in the price of substantial purchases made by the Communities for their official use.
Subject solely to the reservations mentioned in the second and third paragraphs of Article 3 of the Protocol, that immunity
covers all types of taxation, whether direct or indirect, and must therefore be regarded as extending to contributions or
taxes of any type nature which constitute internal taxation under Community law.
Accordingly, the answer to the first question must be that Article 3 of the Protocol is to be interpreted as covering compulsory
charges, such as additional motor insurance premiums, intended to contribute to the financing of public interest institutions.
Second question
By its second question the national court seeks to ascertain whether the charges in question may be regarded as taxes or dues
which merely constitute remuneration for public utility services within the meaning of the third paragraph of Article 3 of
the Protocol, for which no exemption is granted.
The Commission considers that since they bear no relation either to the amount of supplies furnished or the value of services
actually rendered, those charges constitute a general tax rather than remuneration for a service.  It points out in that connection
that neither the Community nor its officials are affiliated to the Belgian social security scheme and that they receive no
benefits from it.
INAMI, FNRSH and the Belgian Government maintain, conversely, that the additional premiums do in fact contribute to the remuneration
of a public utility service.
As the Court has already held, the distinction between a tax intended to provide for the general expenses of public authorities
and a due constituting consideration for a given service, which is recognized in the national law of various Member States,
is expressly recognized by Article 3 of the Protocol (see Case 32/67
Van Leeuwen
v
Rotterdam
[1968] ECR 43).
On that point it should be noted that the very concept of consideration for a specific service presupposes that that service
is provided, or at least may be provided, to those paying the charge.  A contribution cannot therefore constitute mere remuneration
for public utility services, within the meaning of the third paragraph of Article 3 of the Protocol, unless such services
are provided, or at least are capable of being provided, to those who have to pay the contribution.
As was pointed out in paragraph 16 of this judgment, the additional motor insurance premiums must be paid by all those who
take out insurance whether or not they will benefit from the services provided by the recipient institutions, and give no
entitlement to specific provision of such services.  In that connection it should be emphasized, as the Commission does, that
neither the Communities nor their servants under the Staff Regulations are affiliated to the Belgian social security scheme
and that they receive no benefits from it.
The reply to the second question must be therefore that the third paragraph of Article 3 of the Protocol is to be interpreted
as not applicable to compulsory charges, such as additional motor insurance premiums, which are intended to contribute generally
to the financing of public interest institutions and which do not constitute consideration for a specific service.
Third question
By its third question the national court asks whether the second paragraph of Article 3 of the Protocol, which refers to the
remission or refund of indirect taxes or sales taxes included in the price of movable or immovable property, where the Communities
make substantial purchases for their official use applies to taxes and dues levied on services provided in the same circumstances.
The Commission, which considers that the charges in question could equally be regarded as direct or as indirect taxes, claims
that in any event remission of the taxes and dues referred to in the second paragraph of Article 3 of the Protocol applies
where purchases of goods or services have been made, the amount of which exceeds the threshold laid down by national legislation.
INAMI and FNRSH consider, on the other hand, that the additional motor insurance premiums are not taxes included in the price
at the time of purchase and are not, therefore, covered by the second paragraph of Article 3 of the Protocol.
As Advocate General Jacobs states in points 37 and 38 of his Opinion, the absence of an express reference to services in the
second paragraph of Article 3 of the Protocol can be explained by the greater importance attached historically to the taxation
of goods and does not justify the conclusion that the authors of the Protocol intended payment for services to be excluded
from the scope of that provision. Indirect taxes and sales taxes included in the price of movable or immovable property relate in general not only to the purchase
of material goods but also to the acquisition of rights of different kinds.  Thus value added tax, which constitutes the principal
sales tax included in the price of an item, is levied not just on purchase as such but on all forms of supply, including rental
contracts, which enable goods to be made available under certain conditions without transfer of legal ownership, as well as
different forms of provision of services.
In view of the purpose of the fiscal immunity granted to the Communities, there is no valid reason to limit the remission
or refund of indirect taxes or sales taxes to purchases of goods
stricto sensu
and to exclude remission for transactions relating to the provision of services.  If those transactions are necessary to
accomplish the task of the Communities and their amount allows them to be described as substantial in relation to the values
fixed by the legislation in question, they should all be capable of giving rise to remission or refund of taxes included in
their price.
It is clear, moreover, from the documents produced by the Commission and the Belgian Government in reply to a written question
put by the Court that the measures taken by the Member States pursuant to the second paragraph of Article 3 of the Protocol
for the purpose of exemption from or reimbursement of indirect taxes and sales taxes cover the supply of services in the same
way as the supply of goods.
Accordingly the reply to the third question must be that the second paragraph of Article 3 of the Protocol is to be interpreted
as meaning that the remission or refund of the amount of indirect taxes or sales taxes for which it provides applies to all
types of purchase, including obtaining a supply of services, which are necessary for the accomplishment of the Communities'
task, and the amount of which exceeds the threshold laid down by the legislation in question.
Costs
Since these proceedings are, for the parties to the main proceedings, a step in the proceedings pending before the national
court, the decision on costs is a matter for that court.
On those grounds,
THE COURT,
in answer to the questions referred to it by the Tribunal de Première Instance, Brussels, by judgment of 23 June 1994, hereby
rules:
1.
Article 3 of the Protocol on the Privileges and Immunities of the European Communities is to be interpreted as covering compulsory
charges, such as additional motor insurance premiums, intended to contribute to the financing of public interest institutions.
2.
The third paragraph of Article 3 of the Protocol is to be interpreted as not applicable to compulsory charges, such as additional
motor insurance premiums, which are intended to contribute generally to the financing of public interest institutions and
which do not constitute consideration for a specific service.
3.
The second paragraph of Article 3 of the Protocol is to be interpreted as meaning that the remission or refund of the amount
of indirect taxes or sales taxes for which it provides applies to all types of purchase, including obtaining a supply of services,
which are necessary for the accomplishment of the Communities' task, and the amount of which exceeds the threshold laid down
by the legislation in question.
Rodríguez Iglesias
Kakouris
Puissochet
Hirsch
Schockweiler
Moitinho de Almeida
Kapteyn
Jann
Ragnemalm
Sevón
Wathelet
Delivered in open court in Luxembourg on 28 March 1996.
R. Grass
G.C. Rodríguez Iglesias
Registrar
President
–
Language of the case: French.