JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(Third Chamber)

21 October 2009

Case F-74/08

Dominique Ramaekers-Jørgensen

v

Commission of the European Communities

(Civil service – Officials – Community tax – Calculation – Combining the amount of personal remuneration and the survivor’s pension – Rules for collecting the tax – Date of levy)

Application: brought under Articles 236 EC and 152 EA, in which Ms Ramaekers-Jørgensen seeks, first, annulment of the decision of the appointing authority of 20 May 2008 rejecting her complaint against the rules for calculating and collecting the Community tax due on her survivor’s pension and, in so far as is necessary, annulment of the Commission’s decision of 16 October 2007 awarding her that pension in so far as the latter decision lays down the abovementioned rules; second, a finding that Articles 3 and 4 of Council Regulation (EEC, Euratom, ECSC) No 260/68 of 29 February 1968 laying down the conditions and procedure for applying the tax for the benefit of the European Communities (OJ English Special Edition 1968 (I), p. 37), as most recently amended by Council Regulation (EC, Euratom) No 420/2008 of 14 May 2008 adjusting with effect from 1 July 2007 the remuneration and pensions of officials and other servants of the European Communities (OJ 2008 L 127, p. 1), are unlawful in so far as those provisions provide for the survivor’s pension awarded to an official to be combined with his salary for the calculation of the Community tax.

Held: The action is dismissed. The applicant is ordered to bear her own costs and to pay the costs of the Commission. The Council of the European Union, intervener for the Commission, is ordered to bear its own costs.

Summary

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