Opinion of the Advocate General — ECLI:EU:C:2015:441
Date: 2015-07-02
Language of the case: French
Subject matter: Privileges and immunities
Procedure: Action for failure to fulfil obligations - successful
Origin: Belgium

Summary — Judgment of the Court (Fifth Chamber), 14 January 2016 1. Privileges and immunities of the European Union — Tax immunity of the European Union — Indirect taxes — Meaning — Contributions in respect of the supply of electricity and gas — Included — EU institutions not designated as the person liable for those contributions — No effect (Protocol No 7 annexed to the EU and TFEU Treaties, Art. 3, second para.) 2. Privileges and immunities of the European Union — Tax immunity of the European Union — Exclusion of taxes and dues amounting to charges for public utility services — Taxes serving the purpose of financing public service tasks not aimed at EU institutions — Inapplicability of the exclusion (Protocol No 7 annexed to the EU and TFEU, Art. 3, third para.) 1. It does not follow from the wording of the second paragraph of Article 3 of the Protocol on the Privileges and Immunities of the European Union that the EU must be specified by the national legislation as the person liable for indirect taxes in order for the immunity provided for in that provision to apply. That provision requires only that such indirect taxes be included in the price of movable or immovable property and that the price includes such taxes. Similarly, a condition requiring the indirect tax at issue to be passed on to the EU institutions does not appear in the wording of the second paragraph of Article 3 of the protocol. Consequently, as regards contributions in respect of the supply of electricity and gas included in invoices addressed to EU institutions, such contributions must be considered to be indirect taxes falling within the scope of the second paragraph of Article 3 of the protocol, even if, in accordance with the national legislation at issue, the EU institutions have not been designated as the persons liable for those contributions. (see paras 39, 42, 43, 46, 47) 2. Two conditions must be satisfied for an indirect tax, such as contributions in respect of the supply of electricity and gas, to be considered as amounting to mere remuneration for public utility services within the meaning of the third paragraph of Article 3 of the Protocol on the Privileges and Immunities of the European Union. According to the first of those conditions, such services must be provided, or at least be capable of being provided, to those who have to pay such an indirect tax. According to the second condition, there must be a direct and proportional link between the actual cost of that service and the tax paid by the recipient. Those two conditions are cumulative. In that regard, if the contributions paid by the EU institutions also serve the purpose of financing public service tasks from which those institutions are incapable of benefiting, on that basis alone, the first condition is not satisfied and, also, with regard to the second condition, there is no direct and proportional link between the amount of the contested contributions and the actual cost of the public services provided for by the applicable national legislation. In addition, there is no such link even with regard to public service tasks from which the EU institutions are capable of benefiting where it is not possible to establish from the applicable national legislation the extent to which the EU institutions can benefit from the public services at issue. (see paras 66, 70, 71, 73)