Opinion of the Advocate General — ECLI:EU:C:2005:543
Date: 2005-09-13
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Privileges and immunities
Procedure: Arbitration clause - unfounded
Origin: Germany

Summary of the Judgment 1. Privileges and immunities of the European Communities – Fiscal immunity of the Communities – Agreement on the seat of the European Central Bank – Refund of turnover tax in respect of various supplies of goods and services in the context of supplies intended for official use by the Bank – Condition – Separate invoicing – Clear and precise condition (Protocol on the Privileges and Immunities of the European Communities, Art. 3, second para.) 2. Privileges and immunities of the European Communities – Fiscal immunity of the Communities – Refund of indirect taxes and sales taxes in respect of property – Application to turnover tax for various supplies of goods and services – Condition – Separate invoicing – Lawfulness – Margin of discretion of Community institutions and Member States in the conclusion of implementation agreements with regard to refunds (Protocol on the Privileges and Immunities of the European Communities, Art. 3, second para.) 1. Article 8(1) of the Agreement of 18 September 1998 concluded between the Government of the Federal Republic of Germany and the European Central Bank on the seat of that institution makes the refund of turnover tax in respect of various supplies of goods and services in the context of supplies intended for official use by the Bank expressly and unambiguously subject to the condition that that tax be ‘invoiced separately’ to the Bank. Although an interpretation of a provision of an agreement ‘in the light’ of its legal context is possible in principle to resolve a drafting ambiguity, such an interpretation cannot have the result of depriving the clear and precise wording of that provision of all effectiveness. (see para. 31) 2. The condition, laid down in Article 8(1) of the Agreement of 18 September 1998 concluded between the Government of the Federal Republic of Germany and the European Central Bank on the seat of that institution which makes the refund of turnover tax in respect of various supplies of goods and services in the context of supplies intended for official use by the Bank subject to the requirement that that tax be ‘invoiced separately’ in order for it to be reimbursed by the Member State is contrary neither to the aims nor to the wording of the second paragraph of Article 3 of the Protocol on the Privileges and Immunities of the European Communities, which provides that 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. That provision merely provides for the adoption of ‘appropriate measures’ with a view to tax refunds only with regard to ‘substantial purchases’ and only ‘wherever possible’. A margin of discretion is thus granted to the Community institutions and the Member States in the conclusion of agreements concerning the implementation of the second paragraph of Article 3 of the Protocol. (see para. 32)