3.

Finally, the third and fourth questions from the court making the reference can be dealt with together. Basically it is a question, if I see it rightly, only of whether Community law precludes the capital value of a pension of a widow of a Community official from being taken into consideration by way of reduction of the free allowance which the national succession duty law provides for such a taxpayer. On this the defendant in the main action and the Netherlands Government have taken the view that the provisions of the Protocol do not have such an effect, since it is obviously not. a question of a tax charge on the capital value of the survivor's pension but the amount of the duty which the rest of. the estate has to bear. On the other hand, the Commission takes the view that the Protocol on the Privileges of the Community must be given a wide interpretation on this point as well, and excludes an indirect taxation of the capital value of the survivor's pension, as would happen if the capital value were taken into account in the assessment of the free allowance. As regards this dispute it may first be said that arguments in favour of the Commission's view may be deduced from the aforementioned judgment in Case 6/60. In that case — let me shortly remind you — it was, as you know, a question of whether the salary of an official of the European Coal and Steel Community could be taken into consideration in determining the rate of a Belgian progressive surtax which is levied on the whole income of the married couple (in the case in question excluding the income from the Community). The Court in fact answered this question in the negative, because it perceived that such a procedure would involve indirectly taxing emoluments from the Community. It stated on this that a strict separation should be made between income subject to the fiscal sovereignty, of the Member States and the salaries which the Community pays. The latter were excluded from the tax sovereignty of the Member States; they fell, as regards their obligation to tax, exclusively under Community law. From this it followed that Community salaries may not provide the legal basis for national taxation and that it was not possible to allow a causal connexion between the income from the Community and the amount of the national taxes owed by the taxpayer. It may nevertheless appear questionable whether this legal view, which was developed with regard to questions of income tax, and in my opinion is certainly right in that connexion, can automatically be transferred to the sphere of the law of death duties. Whereas there is a Community tax which may be equated with income tax, there are no death duties under Community law. In this connexion it appears interesting to me that in the judgment in Case 32/67 it was stated that the second paragraph of Article 12 of the EEC Protocol on Privileges, which corresponds to the second paragraph of Article 13 of the present Protocol, may not be separated from the first paragraph, under which ‘officials and other servants of the Communities shall be liable to a tax for the benefit of the Communities on salaries, wages and emoluments paid to them by the Communities, in accordance with the conditions and procedure laid down by the Council’. ‘As a consequence of this provision’, the judgment continues, ‘by the second paragraph the salaries, wages and emoluments taxed by the Community are exempt from national taxes…’. I understand the reference to this connexion as meaning that the broad interpretation, which the said judgment in Case 6/60 gave to the Protocol, that indirect taxation was also ruled out, appears appropriate only in the case of national taxes which correspond to those in the first paragraph of Article 13 of the Protocol, i.e. where the subject of taxation is income. As regards other taxes on the other hand, only direct taxation of the said salaries, wages and emoluments is precluded by the second paragraph of Article 13 of the Protocol, since this alone has the same effect as the Community tax and leads to an undesirable double taxation. If Member States retain the power to tax estates — naturally always excluding the capital value of Community pensions — then no compelling reasons can be discerned in Community law for precluding the value of the pension from being taken into consideration in the assessment of the duty on the estate — and with this I return to the question which concerns us now. Considerations of the appropriate national law must prevail here, such as the consideration in the Netherlands that a free allowance in favour of a surviving spouse is appropriate where provision for his or her old age requires it, but not where provision for old age is secured by other means and from other sources. Further, death duties are not a tax on income but on estates. Since there are no death duties under Community law, then, in so far as the charge on the whole estate is concerned the national legislature must be left a discretion as to whether it has regard to the pension claims under Community law in fixing the amount of the charge on the estate. Contrary to the view of the Commission, I am therefore inclined to state, in reply to the third group of questions from the court making the reference, that the Protocol does not prevent the capital value of a survivor's pension paid by the Communities from being taken into account in the assessment of the free allowance under a national law on death duties.