CELEX: 62008FJ0074
Public service
Officials

1.
Actions for annulment – Jurisdiction of the Community judicature – Application for annulment of an individual act adversely
affecting an official – Community judicature not competent to declare a provision of general application unlawful in the operative
part of its judgments
(Art. 230 EC)
2.
Officials – Pensions – Pension for surviving spouse
(Staff Regulations, Art. 79; Annex VIII, Art. 17; Council Regulation No 260/68, Arts 2, 3(1), 4 and 8)
3.
Officials – Tax on salaries – Application of different rates to different income brackets
(Council Regulation No 260/68, Art. 4)
4.
Officials – Pensions – Pension for surviving spouse
(Protocol on the Privileges and Immunities of the European Communities, Art. 13; Council Regulation No 260/68, Arts 3 and 4)
1.
Although, in an application for annulment of an individual measure having adverse effect, the Community judicature does in
fact have jurisdiction to declare, incidentally, the illegality of a provision of general application upon which the contested
measure is based, the Tribunal does not, however, have jurisdiction to make such declarations in the operative part of its
judgments.
(see para. 37)
2.
The Community tax system provides for a system of progressive taxation taking into account all the emoluments of each person
liable in order to calculate the tax basis. Article 4 of Regulation No 260/68 laying down the conditions and procedure for
applying the tax for the benefit of the European Communities thus provides that the tax is calculated on the taxable amount
obtained pursuant to Article 3, paragraph 1 of which provides that ‘the tax shall be payable each month on salaries, wages
and emoluments paid by the Communities to each person liable’. The taxable base subject to the Community tax is thus made
up of the sum of the salaries, wages and other Community emoluments paid to each person liable.
Article 79 of the Staff Regulations and Article 17 of Annex VIII to the Staff Regulations, concerning the survivor’s pension,
do not contain any derogation from the general rule that the Community tax is to be calculated on the basis of a person’s
combined emoluments. Even though those provisions lay down the amount, before tax, of the survivor’s pension depending on
the career of the deceased spouse, that pension represents, for the surviving spouse, replacement income designed to compensate
for the loss of earnings of the deceased spouse. It thus constitutes an emolument paid by the Communities, within the meaning
of Article 3(1) of Regulation No 260/68, of which the surviving spouse is a direct recipient according to Article 2 of that
regulation. Where that spouse is also an official, he is also subject to the Community tax on his salary pursuant to the same
provisions. Consequently, the tax payable by him is that calculated in accordance with Article 3(1) and Article 4 of Regulation
No 260/68, the taxable amount being the sum of the salary and the emolument paid each month.
In the absence of any express exemptions for survivors’ pensions, the combination rule must also apply where a salary and
a survivor’s pension are paid simultaneously. That finding is not called into question by the fact that payments to the official
of his salary, on the 15th of each month, and his survivor’s pension, at the end of the month, are not simultaneous, since
Regulation No 260/68 does not make the application of the combination rule subject to payment of all emoluments at one time.
In particular, Article 3(1) provides that ‘the tax shall be payable each month on salaries, wages and emoluments’, so that
the tax is calculated on the total of the sums paid during that period. Lastly, Article 8 of Regulation No 260/68, according
to which ‘[t]he tax shall be collected by means of deduction at source’, lays down only one rule for the collection of the
tax.
(see paras 48, 49, 52-56)
See:
T-502/93
Coen-Porisini
v
Commission
[1994] ECR-SC I‑A‑303 and II‑949, paras 22, 28 and 29
3.
The application of different rates to the different income brackets provided for in Article 4 of Regulation No 260/68 laying
down the conditions and procedure for applying the tax for the benefit of the European Communities does not prevent the levying
of a single tax liability on total income, without distinction, in which the percentage of that liability increases as the
total income of the person liable reaches a higher bracket.
(see para. 64)
4.
By making the Council responsible for laying down, inter alia, the conditions under which European officials are subject to
a tax, for the benefit of the Communities, on all salaries, wages and emoluments paid by the Communities, and by also exempting
the same salaries, wages and emoluments from any national tax, Article 13 of the Protocol on the Privileges and Immunities
of the European Communities introduced a system of taxation which relates specifically to staff of the Communities. That system
is intended, through its uniform nature and by being independent of national tax legislation, to guarantee equal treatment
between officials of the Communities. The status of European official is thus a relevant criterion for distinguishing the
tax situation of such an official from that of persons not in receipt of a Community remuneration.
(see paras 73-74)
See:
6/60
Humblet
v
Belgian State
[1960] ECR 559; 7/74
Brouerius van Nidek
[1974] ECR 757, para. 11; 85/86
Commission
v
EIB
[1988] ECR 1281, para. 23; C-437/04
Commission
v
Belgium
[2007] ECR I‑2513, para. 61