(2)

For my part I share the applicants view that, whatever the approach to the second subparagraph of Article 3 (4), the only condition laid down by that provision for granting the abatement is that the taxpayer has a dependent child so that by adding to its unambiguous wording the defendant has manifestly disregarded it. On the other hand, if it is permissible to go beyond the strict limits to any consideration of the actual wording of this provision in order to tackle questions such as the basis and purpose of the dependent-child tax abatement or the situation in the Member States in this connexion I dare say the defendant is right. But the problem happens to be whether it is possible to follow the defendant in this direction. In order to determine this question it is in my view necessary to start from the provision which is to be interpreted and not to forget that, in order to validate a practice which cannot be reconciled with its wording, the Commission is bound to call in aid the basis and purpose of the tax rule by means of a broad interpretation against the taxpayer. We are in fact confronted with a provision of which it is possible to say discreetly, as the representative of the defendant institution did during the hearing, that it is to be regretted that it does not define the problem more clearly or, to use plainer language, that it is ambiguous and incomplete. In these circumstances it is in my view for the Court simply to apply the provision as it is rather than endeavour to hallow the way in which it has hitherto been applied. It is not for the Court to take the place of the authors of the regulation on Community taxation. It is not the task of the Court to legislate but to undertake a review, nor is it the task of a meeting of heads of administration to add to it in reaching agreement on a common application of regulations applying to officials. If, as I believe, an amendment of the second subparagraph of Article 3 (4) of Regulation No 260/68 is urgently necessary, it is the sole responsibility of the Community legislature. It seems to me that the duty to do this is all the more pressing as we are concerned with a tax provision. It is a principle accepted in all the Member States of the Community that tax provisions are to be construed strictly and that if there is doubt the interpretation most favourable to the taxpayer must be adopted. There is no justification for a different approach to the tax levied by the Community on the salaries of its servants. If these principles happen to give way to the opposite principles there must be a serious reason for this, usually based on equity. On this latter point the applicants assert in their second submission that, in their capacity as spouses of other Community officials, they are discriminated against compared with officials whose spouses work outside the Communities and receive a dependentchild abatement or similar advantage. But the defendant's reply to this is that the system which they advocate, by reason of the fact that the husband and wife who are officials each receive a tax abatement for the same child, also leads to discrimination against those officials whose spouses do not work or, if they do, do not reap an advantage of the kind in question. That is why, without wishing to settle that issue now, I believe that there is no discrimination which is so obvious that one may venture to disregard the principles I have mentioned. Furthermore the practice criticized by the defendant, which has consisted in adopting a rule against overlapping without there being any provision to that effect, contravenes another universally recognized principle namely that a rule against overlapping cannot be presumed. If the authors of Regulation No 260/68 had intended to adopt such a rule they would have had to mention it expressly. Their failure to state their intention expressly cannot be validly made good by the administration's adopting a practice of this kind which is bound to be legally void. It is therefore impossible to accept the Commission's justification of its view, namely that the dependent-child tax abatement from the practical standpoint, in other words having regard to the objective which it seeks to attain, proves to be a supplementary family allowance, a classification put forward by the defendant in order to be able to apply to it the general principle against overlapping, applicable even without any provision to that effect, which it asserts is based on Article 67 (2) of the Staff Regulations, although that provision refers specifically only to the allowances mentioned in Article 67 (1). An analysis of this argument reveals moreover that it does not fully appreciate the facts. As is shown by the document headed “Codification and Terminology of the Personnel Individual Record Sheet” of Commission officials, an official who has a child in respect of which there is, however, no entitlement to the family allowance for a dependent child receives the tax abatement. Consequently since a dependent child, in respect of which there is no entitlement to that allowance, may give rise to entitlement to the tax abatement, logically the inference should be drawn that receipt of the tax abatement is not necessarily linked to there being a dependent child giving rise to entitlement to an allowance. This reasoning, however, cannot be accepted because, in the case of two officials who are husband and wife, only the spouse who is in receipt of the allowance and is consequently entitled to it receives the tax abatement. Finally there can be no doubt that the practice of avoiding overlapping to which exception is taken disregards the essence of the system of Community taxation. Because the Community legislature has organized a system for taxing the individual the defendant is not entitled to take into consideration the tax situation of another taxpayer, even if that person is the spouse of one of its officials, and then refuse to grant the latter the tax abatement to which from a reading of the relevant provision, he is without question entitled.