JUDGMENT OF THE COURT OF FIRST INSTANCE (Fourth Chamber)

1 December 1994

Case T-502/93

Fernanda Coen-Porisini

v

Commission of the European Communities

‛Officials — Community tax — Basis of assessment — Aggregation of salary and survivor's pension — Contribution to the Joint Sickness Insurance Scheme deducted from salary and survivor's pension’

Full text in Italian II-949

Application for:

annulment of the Commission's decision, first, to assess the applicant's liability to Community tax on the aggregated amount of her salary and her survivor's pension, and, secondly, to levy a contribution towards the Joint Sickness Insurance Scheme on the amount of that pension.

Decision:

Application dismissed.

Abstract of the Judgment

After the death of her husband, who was a Commission official, the applicant, who was herself an A 4 Grade Commission official until her retirement on 1 August 1993, received a survivor's pension as from 1 September 1992.

In her action, the applicant disputes the assessment of both her liability to Community tax and her contributions to the Joint Sickness Insurance Scheme of the European Community institutions on the basis of the whole of her income, comprising her salary and the survivor's pension.

Substance

The first plea, alleging infringement of Regulation No 260/68

The Community tax system established by 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 provides for a system of progressive taxation taking into account all the emoluments of each person liable in order to determine the taxable amount (paragraph 18).

The requirement that emoluments be aggregated for the purposes of assessing the tax results from the wording of Articles 3 and 4 of the regulation. Each time the Community legislature wished to exclude the application of the aggregation rule, it did so by means of express provisions to that effect, such as Article 3(3) to (5), Article 6(1), and Article 13. The aggregation rale must therefore be applied to the simultaneous payment of a salary and a survivor's pension, which is a case of concurrent payment that does not appear amongst the derogations provided for by the above provisions (paragraphs 19 to 22).

The second plea, alleging infringement of Article 79 of the Staff Regulations

The first paragraph of Article 79 of the Staff Regulations provides that the widow of an official is entitled to a survivor's pension equal to 60% of the retirement pension payable to her husband at the time of his death (paragraph 27).

The Court considers that that article merely lays down the detailed rules for assessing the amount of the survivor's pension, on the basis of which tlie pecuniary rights of the surviving spouse must then be calculated by applying, inter alia, Community tax. Since Article 79 does not contain any provision derogating from the general rule that emoluments are to be aggregated for the purposes of assessing that tax, the Commission's assessment is correct (paragraphs 28 to 30).

The third plea, alleging infringement of general principles of law, especially the principle of proportionality

It follows both from Articles 72 to 76 of the Staff Regulations, which appear in Chapter 2 of Title V dealing with social security benefits, and from the Rules on Sickness Insurance for Officials, to which Article 72 refers, that the system established is contributory in character, inasmuch as officials, as members of the joint scheme, are obliged to pay a contribution and are entitled to reimbursement of all the expenses referred to in Article 1 of the Rules (paragraph 37).

The amount of the contribution paid by each member is, however, fixed not by reference to the benefits under the joint scheme to which he is entitled, but by reference to his capacity to contribute, or in other words the total of his own emoluments. It therefore follows that the principle of proportionality is concerned with the relationship between die capacity of each member to contribute and the amount of his contribution, but is in no way concerned with the relationship between the amount of that contribution and the amount of the sickness insurance benefits to which he is entitled (paragraph 39).

Therefore, the levying of contributions assessed on the various emoluments of Community origin received by a particular person does not infringe the principle of proportionality because it always remains proportionate to the member's capacity to contribute (paragraph 40).

Operative part:

The application is dismissed.