CELEX: 62004CC0437
Language: en
Date: 2006-06-29 00:00:00
Title: Opinion of Advocate General Stix-Hackl delivered on 29 June 2006. # Commission of the European Communities v Kingdom of Belgium. # Failure of a Member State to fulfil obligations - Protocol on the Privileges and Immunities of the European Communities - Buildings leased by the Communities - Region of Brussels Capital - Tax on owners. # Case C-437/04.

OPINION OF ADVOCATE GENERAL
      STIX-HACKL
      delivered on 29 June 2006 (1)
      
      Case C‑437/04
      Commission of the European Communities
      v
      Kingdom of Belgium
      (Protocol on the Privileges and Immunities of the European Communities – Article 3 – Tax on owners of buildings in the Region of Brussels Capital leased to the Communities)I –  Introduction
      1.     The present case, (2) as does the pending case of European Community v Belgium, concerns the interpretation of a provision of the Protocol on the Privileges and Immunities of the European Communities
         (‘the Protocol’) (3) – specifically Article 3, on exemption from direct and indirect taxes – which the Court has had to consider only rarely up
         until now, (4)
      
      2.     In essence, the Commission claims that the Kingdom of Belgium has infringed the Protocol by imposing a regional tax which
         is incompatible with the Communities’ fiscal immunity. Although the disputed tax is charged directly to the owner of any building
         used for business purposes with more than a certain floor area, indirectly the tax burden is passed to the occupier, and thus
         to the Communities in respect of buildings of which they are the tenant.
      
      II –  Legal framework
      A –    Community law
      3.     Article 291 EC (5) provides that the Community is to enjoy in the territories of the Member States such privileges and immunities as are necessary
         for the performance of its tasks.
      
      4.     Article 3 of the Protocol provides:
      ‘The Communities, their assets, revenues and other property shall be exempt from all direct taxes.
      The governments of the Member States shall, wherever possible, take the appropriate measures to remit or refund the amount
         of indirect taxes or sales taxes included in the prices of movable or immovable property, where the Communities make, for
         their official use, substantial purchases the price of which includes taxes of this kind. These provisions shall not be applied,
         however, so as to have the effect of distorting competition within the Communities.
      
      No exemption shall be granted in respect of taxes and dues which amount merely to charges for public utility services.’
      5.     Article 13 of the Protocol provides:
      ‘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,
         acting on a proposal from the Commission.
      
      They shall be exempt from national taxes on salaries, wages and emoluments paid by the Communities.’
      6.     Article 19 of the Protocol provides:
      ‘The institutions of the Community shall, for the purpose of applying this Protocol, cooperate with the responsible authorities
         of the Member States concerned.’
      
      B –    National law
      7.     Article 3(1) of the Order of the Region of Brussels Capital of 23 July 1992 concerning a regional tax on occupiers of buildings
         and owners of real property rights over certain buildings (‘the Regional Order’) provides as follows:
      
      ‘The tax shall be charged:
      (a)      on every householder who occupies all or part of a building situated within the territory of the Region of Brussels Capital
         as a first or second residence …;
      
      (b)      on every person who occupies all or part of a building situated within the territory of the Region of Brussels Capital and
         in it carries on an activity, including a profession, for his own account, with or without the intention of making a profit,
         and on every legal person or unincorporated association whose seat of business, administration, trade or firm is there…;
      
      (c)      on the freehold owner … of all or part of a building situated within the territory of the Region of Brussels Capital which
         is not used for any of the purposes above under (a).’
      
      III –  Facts and preliminary procedure
      8.     On 3 February 1988 the European Community and SA Vita, whose rights and obligations were subsequently transferred to SA Zurich,
         entered into a lease of a building in Ixelles (Brussels, Belgium). That lease provides that, from the date when it enters
         into force, all taxes and duties, of whatsoever nature, imposed in relation to the leased building for the benefit of any
         public authority, together with all other charges of the same nature, will be borne by the tenant, except where, because of
         its specific status as governed inter alia by Article 3 of the Protocol, the latter obtains from the competent public authorities
         an exemption for the landlord.
      
      9.     On the basis of the Regional Order, the Region of Brussels Capital charged SA Vita various amounts corresponding to the disputed
         tax for the years 1992 to 1997. The Commission rejected the claims of SA Vita for reimbursement of those amounts which corresponded
         to the tax. SA Vita raised proceedings before the magistrate of the First Canton of Ixelles who, by decision dated 26 May
         1998, ordered the Commission to pay to SA Vita amounts of BEF 20 000 277 and BEF 290 211. After the Commission’s appeal to
         the Brussels Court of First Instance had been dismissed, the Commission appealed to the Belgian Court of Cassation against
         the appeal decision.
      
      10.   The Belgian Court of Cassation did not consider it necessary for the purposes of that appeal to refer to the Court of Justice
         for a preliminary ruling the question suggested by the Commission. The Commission had proposed that the Court should be asked
         to clarify whether Article 28 of the Treaty establishing a Single Council and a Single Commission of the European Communities
         and Article 3 of the Protocol, possibly in conjunction with Article 23 of the Vienna Convention on Diplomatic Relations (6) (‘the Vienna Convention’), should be interpreted as precluding the adoption of any law or other national provision introducing
         a direct tax apparently to be borne by any persons who had contracted with a legal person governed by public international
         law but which, in reality, necessarily had the object or effect of making the legal person governed by public international
         law (including the European Commission) bear the actual burden of the tax or of passing the tax on to it.
      
      11.   By letter of formal notice dated 2 April 2003 the Commission instituted infringement proceedings under Article 226 EC. On
         3 June 2003 the Belgium Government replied that the disputed tax was not aimed at international institutions either directly
         or indirectly, but at all owners of buildings which were not used for residential purposes and which exceeded a certain floor
         area. It followed that the Region of Brussels Capital had not infringed the principle that Treaty obligations should be performed
         in good faith.
      
      12.   By a reasoned opinion dated 16 December 2003 the Commission called upon Belgium to put an end to the infringement of the Treaty
         within two months of receipt of the opinion. By letter dated 30 July 2004 the Belgian Government notified the Commission that
         its view had not changed, whereupon, by application of 11 October 2004, lodged at the Registry of the Court on 15 October
         2004, the Commission brought the matter before the Court.
      
      13.   By order of the President of the Court dated 6 April 2005 the Council of the European Communities was given leave to intervene.
      IV –  Submissions of the parties
      A –    Commission and Council
      14.   The Commission and the Council submitted that the Regional Order is an example of a tax provision intended to circumvent the fiscal immunity of international
         organisations and in particular that of the European Community. The intention of the national legislature appears both from
         Article 3(1) of the Regional Order, which identifies the taxable person, and from the travaux préparatoires for the Regional Order.
      
      15.   Whereas the previous provision taxed only occupiers, the Regional Order added a tax on owners in the event of business occupancy
         of a building with more than a certain floor area. However, this was in practice still a tax on occupancy of buildings. That
         the tax was in reality borne by occupiers was ensured by the taxpayer-owner inevitably passing on the tax to his tenant by
         means of an increase in rent, for example by contractual passing on of the tax burden to the tenant. Admittedly, the clauses
         of the leases entered into by the Commission which provided for property taxes to be passed on to the tenant were already
         contained in those leases when the disputed tax was introduced, and the Commission had thus agreed in advance to an increase
         in rent to take account of tax. However, it had to be borne in mind that in Brussels leases were entered into normally for
         a period of nine years, and usually provided for the burden of property taxes to be passed on to the tenant. It was in practice
         impossible for a tenant to avoid such a clause, and the Commission was in that regard in no better position than any other
         tenants. Accordingly, the decisive point was that the factual and legal context had been the reason for introducing the tax
         in its present form, as was shown by the statements made by the competent Minister for Finance, the Budget and the Civil Service
         for the Region of Brussels Capital on which the Commission had relied.
      
      16.   The introduction of the tax had noticeably increased tax receipts, in that a tax was received in relation to buildings in
         respect of which no tax had been received before, because the buildings were occupied by persons or institutions who were
         exempt from tax. Contrary to what the Belgian Government submitted, the introduction of the tax was accordingly not neutral.
      
      17.   In addition, in contrast to private commercial tenants, the Communities were not able to deduct rent and ancillary costs for
         tax purposes, which meant that these constituted a comparatively higher burden for the Community. In terms of tax, the lease
         of buildings to the Communities thus conferred upon Belgium a particularly noticeable advantage. Specifically, if an undertaking
         leased a building, the tax received would be balanced out by the deduction by the tenant of rent and ancillary costs from
         its own taxes. By contrast, if the Communities leased a building, the Region of Brussels Capital received the disputed tax
         on the one hand, without the tenant being allowed to deduct the disputed tax from its total taxes on the other. The advantage
         was therefore particularly significant where both property tax (‘précompte immobilier’) and the disputed tax were reimbursed
         to the taxpayer-owner by the Community.
      
      18.   As regards the comparison between the disputed tax and property tax (‘précompte immobilier’) it was not in dispute that until
         now the institutions had not taken any legal proceedings to challenge the property tax. However, a mere practice could not
         amend the rules in the Treaty and it followed that the Commission was by no means obliged in the present case to take the
         same position as it did in relation to property tax. In any event, the comparison was inappropriate, because property tax
         was a tax which had existed as such before the European Communities had established themselves in Brussels and accordingly
         had not been introduced for the purpose of circumventing the Communities’ fiscal immunity. Nor was the basis of taxation comparable,
         property tax relating to the income received from property and the taxpayer being the owner of the property. As regards the
         disputed tax, however, the same result was achieved, in that the taxpayer was either the occupier or the owner. The regional
         legislature was required to choose who should be the taxpayer in a manner consistent with its obligation of loyal cooperation
         with the Communities, and in doing so to ensure that tax receipts paid into the Communities’ funds were not redirected to
         the treasury of a State in which the Community institutions had their seat; otherwise, that State would receive an unjustified
         advantage from the fact that the Community had its seat within its territory.
      
      19.   Moreover, the regional legislature could have exempted buildings leased by the Community from the tax, as was the case in
         respect of buildings leased by the European Parliament. In any event, the Region of Brussels Capital should have consulted
         with the institutions pursuant to Article 19 of the Protocol, in order to find a solution which was in conformity with the
         EC Treaty.
      
      20.   The European Communities’ immunity under Article 3 of the Protocol confirmed and illustrated the general rule of public international
         law provided for in Article 23 of the Vienna Convention. Article 3 of the Protocol is an expression of longstanding custom
         and practice based on the principles of sovereignty and equality of States. Whereas Article 23 of the Vienna Convention expressed
         only a minimal version of fiscal immunity, under Article 3 of the Protocol not only buildings but also all assets, revenues
         and other property were to be exempt from all direct taxes, as broadly and as comprehensively as possible, and without making
         any exception for taxes payable by a person who had entered a contract with the Community but borne indirectly by the Community.
         In addition, Article 3 of the Protocol provided for immunity from all indirect taxes.
      
      21.   The case-law of the Court on the Protocol also tended to give a broad interpretation to the European Communities’ fiscal immunity.
      22.   Commission v Belgium (7) was worthy of mention in that it could provide an analogy to the present case as regards the transfer of the financial burden
         from owner to tenant. However, it was materially different in that, by contrast to the institutions whose fiscal immunity
         was in dispute in the present case, Community officials did not enjoy a comprehensive fiscal immunity. Moreover, in the present
         case the Commission had not applied for a ‘contractual transfer of fiscal immunity’, but was merely of the opinion that the
         Belgian authorities should have added to the tax exemptions available to owners one for buildings occupied exclusively by
         the Communities.
      
      23.   In summary, it was clear that a legal provision which, without expressly imposing a tax on the Communities, had the object
         or effect of imposing a tax burden on the Communities indirectly was incompatible with the principle of fiscal immunity.
      
      B –    The Belgian Government
      24.   The Belgian Government began by observing that the European Communities were outside the scope of application of the Regional Order in that the
         Protocol exempted them from this tax whether they were occupiers or owners or lessees. It followed that it could not be said
         that the European Communities were liable for the disputed tax.
      
      25.   To the extent that it did not infringe the Commission’s fiscal immunity, the tax did not infringe the principle of public
         international law that treaties should be performed in good faith. There was no tax liability but instead a contractual obligation
         owed to the taxpayer-owner. On that point the Belgian Court of Cassation had decided that the passing on of the tax burden
         was founded on a contract governed by private law, and that it would accordingly be disproportionate to allow an international
         organisation to demand exemption from a part of the rent that related to a general tax increase.
      
      26.   Given that the payment disputed by the Commission arose from the provisions of a contract governed by private law, it was
         also immaterial that the disputed tax had been introduced after the contracts which passed on the burden of certain taxes
         to the tenant had been concluded. This contractual obligation was binding on all private and public persons at the time the
         contract was concluded and thereafter. In addition the parties to the contract could easily change the contractual provision
         which passed on the tax burden to the tenant.
      
      27.   The Vienna Convention, in particular Article 23(2) thereof, also provided that exemption from taxation did not extend to taxes
         payable by a person who had entered a contract with the Communities as is the case, for example, here. The fact that the owner’s
         tax liability was passed on to the international organisation in the form of additional rent or ancillary costs did not ipso facto transform that rent or those ancillary costs into tax. It followed that the Vienna Convention precluded fiscal immunity being
         applied to the contractual passing on of a tax burden. The Vienna Convention, as an expression of customary international
         law, was part of general public international law and as such had to be observed by the Community in the exercise of its powers.
      
      28.   As regards the case-law relied upon by the Commission, it was clear that the Court had never expressed an opinion on the fiscal
         immunity claimed for the Community in the context of a tax imposed on the owner of property leased to the Community but passed
         on to the Community. However, the case-law concerning the Protocol confirmed generally the purely ‘functional’ role of the
         rights and immunities conferred by the Protocol on the Communities, which were intended to ensure the functioning and the
         independence of the Community.
      
      29.   As regards the case-law on Article 13 of the Protocol, (8) the Commission was of the view that it applied by analogy to Article 3 of the Protocol, but had not made the relationship
         between these two provisions clear or explained the differences between their respective purposes and the matters and persons
         which they governed. In AGF Belgium (9) the Court had expressly differentiated between the case-law concerning Article 13 and the case-law concerning Article 3 of
         the Protocol. In addition, in that case the Court had concluded from the binding nature of the disputed levy that it was within
         the scope of the Community’s fiscal immunity under Article 3(1), whereas in the present case there was no statutory payment
         obligation on the Commission. Furthermore, the conclusions the Commission drew from the case-law on Article 13 of the Protocol
         were erroneous. (10)
      
      30.   The disputed tax also complied with the principle of fiscal neutrality. The fiscal immunity provided for in Article 3 of the
         Protocol in favour of international institutions was not intended to reduce rents paid by international organisations. Within
         the scope of its tax-raising powers the regional Brussels legislature was entitled to introduce new taxes and was free to
         determine who was liable to pay them and any exemptions. In the present case the Regional Order provided that the taxpayer
         was the person who had the real property right, which meant that international institutions were not affected in any particular
         way. Thus, the Region of Brussels Capital was not obtaining any fiscal advantage from the fact that international organisations
         had their seat within its territory, because the disputed tax was payable by the owner regardless of whether the building
         was leased to an institution or a natural person, or indeed was not leased at all. In addition, since the tax year 2004 regional
         taxes were no longer deductible from general tax. If the disputed tax were not charged when the Community leased a building,
         this would endanger the equal treatment of owners, because owners who leased their buildings to the Community would have an
         advantage by comparison with other owners.
      
      31.   In addition, the Commission had not shown the extent to which the disputed tax constituted an obstacle to the functioning
         and independence of the European Communities.
      
      32.   In seeking immunity from the disputed tax, the Commission also ignored the principle of loyal cooperation laid down in Article
         10 EC, which not only obliged the Member States to take all appropriate measures to ensure the validity and effectiveness
         of Community law but also imposed on the Community institutions corresponding obligations of loyal cooperation with the Member
         States.
      
      V –  Analysis
      33.   In the present case it is necessary to define more clearly the scope of application of the Communities’ fiscal immunity under
         Article 3 of the Protocol.
      
      34.   The first point to clarify is the extent to which Article 23 of the Vienna Convention is relevant to the interpretation of
         Article 3 of the Protocol in the present case.
      
      35.   There is no doubt that, in exercising its powers, the Community must observe public international law. (11) The Vienna Convention is a public international law convention to which all the Member States of the Community, but not however
         the Community itself, are contracting parties. It was concluded by the Member States acting under their powers to enter into
         diplomatic relations with one another and with third States. (12)
      
      36.   In principle, the Vienna Convention concerns bilateral relationships between States (sending and receiving States) and not,
         as in the present case, the relations between the Community (an international organisation) and the country in which an institution
         of that organisation has its seat (Belgium). (13)
      
      37.   It follows that the Vienna Convention is not of decisive importance in the present case. The Communities’ fiscal immunity
         under Article 3 of the Protocol is to be regarded as a fiscal immunity designed according to the Communities’ characteristics,
         and as such is to be interpreted primarily by reference to Community law.
      
      38.   To date the Court has given an interpretation of Article 3 of the Protocol only once, (14) in AGF Belgium, (15) stating that the Protocol defined the tax exemption in very broad terms. (16) The Court held that the wording and purpose of Article 3 was intended to ensure not only that the Communities, their assets,
         revenues and other property should be exempt from all direct taxes, but also that the Member States were 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. (17) Subject solely to the reservations mentioned in the second and third paragraphs of Article 3 of the Protocol, that immunity
         covered all types of taxation, whether direct or indirect. (18)
      
      39.   That case showed that the fiscal immunity conferred by Article 3 of the Protocol is not to be interpreted exclusively by reference
         to that article’s wording; its spirit and its purpose are the deciding factors. (19) Thus, the broad interpretation given to the fiscal immunity conferred by Article 3 of the Protocol was based on observance
         of the general principles underlying the Communities’ fiscal immunity.
      
      40.   The tax exemption is, on the one hand, conferred in order to ensure the Communities’ independence with regard to the Member
         States and their proper functioning. (20) This ‘functional’ character of the rights and immunities of the Communities has been recognised in the case-law relating
         to various other provisions of the Protocol. (21)
      
      41.   On the other hand, a broad interpretation of the provision should prevent the host State from gaining an unjustified advantage
         by diverting to the national treasury funds contributed to the budget of the Communities. (22) That justification derives from the principle of sovereign equality (23) between States. All the Member States do in fact together provide the funds necessary for the functioning of the Community
         and it would accordingly be unfair if the State where an institution of the Communities has its seat could obtain financial
         advantages from the fact that that seat is within its territory by taxing the Communities. (24) It follows that the fact that the Communities’ have a seat within the territory of a State must be fiscally neutral for the
         latter.
      
      42.   In the case-law relating to Article 13 of the Protocol, (25) on the basis of those principles the Court has repeatedly concluded that any direct or indirect taxation was intended to
         be prohibited. (26) Otherwise the practical effectiveness of the tax exemption conferred by Article 13 of the Protocol would be endangered. (27)
      
      43.   However, the indirect nature of the tax burden in the present case is unusual. Specifically, the regional Brussels legislature
         introduced a tax structure which, although not directly affecting the Communities, can lead to an indirect burden on the Communities’
         assets by means of a general, contractual passing on of the burden of tax agreed by the contracting parties. The question
         thus arises as to whether such an indirect tax burden falls within the Community’s fiscal immunity under Article 3 of the
         Protocol.
      
      44.   It is clear that the Community does not directly bear the tax, since the Regional Order does not impose a direct tax liability
         on the Communities. However, closer examination of the provision raises the question whether Belgium enacted the disputed
         provision in order to circumvent the Communities’ fiscal immunity.
      
      45.   The first point worth mentioning is the historical development of the disputed tax. The provision in force prior to 1992 imposed
         a tax in principle on occupiers of buildings. By reason of the fiscal immunity under Article 3 of the Protocol the Community
         was exempted from this tax in so far as it was the occupier of buildings it leased. The 1992 Regional Order amended the content
         and chargeable event of the disputed tax to the effect that in the event of business occupancy of a building with more than
         a certain floor area the owner became the taxable person instead of the occupier.
      
      46.   Thus, the disputed tax continues to be directed primarily at occupancy of buildings, which means that, logically, the taxpayer
         in respect of the disputed tax should be the occupier, and this was indeed the case until 1992. The fact that the tax is on
         occupancy is confirmed by the point emphasised by the Commission that the exceptions to the disputed tax provision depend
         solely on circumstances related to the occupier and not to the owner, and the exemptions available to an owner depend on the
         characteristics of the occupier and the nature of its business occupancy (for example, buildings used for educational, religious
         or social purposes).
      
      47.   The chargeable event is also the decisive difference between the disputed tax and property tax (‘précompte immobilier’). The
         latter is primarily a tax on the income the owner derives from the building and not, as is the case with the disputed tax,
         a tax on occupancy of the building. Property tax (‘précompte immobilier’) is not a disguised tax on the Communities, even
         if the burden of it may be transferred to the Communities by contract.
      
      48.   By contrast, in terms of its effect the disputed tax appears more like a measure which has the object, or at least the effect,
         that the Communities indirectly contribute to the budget of the Region of Brussels Capital. Contrary to the Belgian Government’s
         claim, the disputed tax clearly increases the tax receipts of the Region of Brussels Capital. Originally, under the previous
         provision, none of the buildings leased by the Community or other international organisations which had their seat in Brussels
         brought in any tax, because the occupier was exempt from tax. By contrast, the 1992 Regional Order increased the number of
         buildings liable to tax at a stroke, by all those leased by international organisations, including the Communities. This increase
         in tax receipts involved a not insignificant burden on the Community’s budget, such that the question arises as to whether
         such a burden is incompatible with the purpose of the fiscal immunity under Article 3 of the Protocol as explained above.
      
      49.   Nor is it possible in the present case to draw a clear distinction between a tax liability on the one hand and a contractual
         obligation on the other, as the Belgian Government seeks to do. The passing on of the tax liability results directly from
         a private law contract and is therefore, in theory not generally applicable. However, the widespread practice of including
         a passing-on of tax clause in leases means that generally the tax burden is passed on to the Communities and the Communities’
         fiscal immunity is thereby circumvented. It follows that, given its legal and factual context, the effect of the measure is
         equivalent to that of a direct tax on the Communities. As is apparent from the statements made by the Minister for Finance,
         the Budget and the Civil Service in relation to the disputed tax which appear in the travaux préparatoires and which were relied upon by the Commission, the Brussels legislature did not overlook that fact when it introduced the
         disputed measure.
      
      50.   If the Belgian Government’s view were accepted, every State in which a Community institution has a seat would be tempted to
         transform direct tax burdens from which the Communities are exempt into indirect tax burdens, in order to circumvent the Communities’
         fiscal immunity and to undermine permanently its practical effectiveness.
      
      51.   Finally it is to be observed that, although the Belgian State is entitled to exercise its autonomy in fiscal matters freely,
         it must do so in a manner which is compatible with its obligations under Community law, including its obligation of loyal
         cooperation under Article 10 EC. It is difficult to reconcile that obligation with the structure of the disputed tax, which
         undoubtedly has the effect of obtaining tax receipts in respect of buildings leased by the Communities where this was not
         previously the case, indirectly and at the cost of the Communities. In addition, the Region of Brussels Capital was under
         an obligation under Article 19 of the Protocol to consult with the institutions in order to ensure that the Communities’ fiscal
         immunity was not infringed and in any event to find a solution which was compatible with the EC Treaty.
      
      52.   In the light of the foregoing considerations it should be held that the disputed tax is not compatible with the fiscal immunity
         provided for by Article 3 of the Protocol. Thus, by subjecting the Communities to a tax by virtue of the Regional Order which,
         although imposed directly on the contracting partner of the Communities, is nevertheless borne indirectly by the Communities
         because of the general factual and legal context, the Kingdom of Belgium has disregarded the fiscal immunity.
      
      53.   Accordingly, the Commission’s complaint is well founded.
      VI –  Costs
      54.   Under Article 69(2) of the Rules of Procedure the unsuccessful party is to be ordered to pay the costs if they have been applied
         for in the successful party’s pleadings. Since the Commission has been successful, the Kingdom of Belgium should be ordered
         to pay the costs.
      
      VII –  Conclusion
      55.   For the foregoing reasons I would suggest to the Court that it should:
      –       declare that, by enacting national tax legislation which provides for a direct tax on persons who conclude contracts with
         the Communities but which indirectly has the object or at least the effect that the real burden of the tax is borne by or
         passed on to the Communities, the Kingdom of Belgium has failed to fulfil its obligations under Article 3 of the Protocol;
      
      –       order the Kingdom of Belgium to pay the costs of the proceedings.
      1 –	Original language: German.
      
      2 –	See my Opinion in the pending Case C‑199/05 European Community v Belgium.
      
      3 –	Protocol of 8 April 1965 (JO 1967 152, p. 13).
      
      4 –	Case C‑191/94 AGF Belgium v European Economic Community and Others [1996] ECR I‑1859. Case C‑220/03 European Central Bank v Germany [2006] ECR I‑10595 concerned Article 3 of the Protocol only indirectly.
      
      5 –	See also the first paragraph of Article 28 of the Treaty establishing a Single Council and a Single Commission of the European
         Communities (JO 1967 152, p. 10), and the sole recital to the Protocol on the Privileges and Immunities of the European Communities.
      
      6 –	Vienna Convention of 18 April 1961 on Diplomatic Relations, United Nations Treaty Series (UNTS), vol. 500, p. 95.
      
      7 –	Case 260/86 Commission v Belgium [1988] ECR 955.
      
      8 –	In particular, Commission v Belgium (cited in footnote 7), and Case C‑229/98 Vander Zwalmen and Massart v Belgium [1999] ECR I‑7113.
      
      9 –	Cited in footnote 3, paragraph 14.
      
      10 –	Thus, in Commission v Belgium (cited in footnote 7), the Court certainly did not express any view against a contractual passing on of the tax burden to
         a lessee who was a Community official, but decided simply that refusing a tax reduction on the sole ground that the tenant
         was an official of the European Communities and consequently exempt from national taxes constituted an infringement of the
         Treaty. It follows that the Commission was wrong to rely on this case for the proposition that it is possible to ‘transfer
         the immunity by contract’.
      
      	In its judgment in Vander Zwalmen and Massart (cited in footnote 8), the Court did not express itself in terms of a general tax exemption but only of a prohibition against
         taxing officials directly or indirectly by reason of the fact that they are in receipt of remuneration paid by the Communities.
         In addition, that case concerned discrimination between officials and other natural persons arising from the absence of any
         income tax liability on Community officials, whereas the present case does not raise any issue of discrimination between Belgian
         and Community institutions.
      
      11 –	Case C‑286/90 Poulsen and Diva Navigation [1992] ECR I‑6019.
      
      12 –	At present there are 179 contracting parties to the Convention: see http://untreaty.un.org/sample/EnglishInternetBible/partI/chapterIII/treaty3.asp.
      
      13 –	See A.S. Muller, International Organizations and their Host States, Aspects of their Legal Relationship, Kluwer 1995, p. 32: ‘These treaties [the 1961 Vienna Convention on Diplomatic Relations and the Vienna Convention on Consular
         Relations] apply only to diplomatic and consular relations and not to the immunities of international organisations. Nevertheless,
         they are at the very least useful points of historical reference and sometimes even an indirect source of law.’
      
      14 –	See footnote 4.
      
      15 –	Cited in footnote 3.
      
      16 –	AGF Belgium (cited in footnote 3), paragraph 19; see also the Opinion of Advocate General Jacobs in that case, paragraph 23.
      
      17 –	AGF Belgium (cited in footnote 3), paragraph 19.
      
      18 –	AGF Belgium (cited in footnote 3), paragraph 20.
      
      19 –	See my Opinion in European Community v Belgium (cited in footnote 4).
      
      20 –	AGF Belgium (cited in footnote 3), paragraph 19.
      
      21 –	Article 1 of the Protocol: see the orders in Case 1/88 SA Générale de Banque v Commission [1989] ECR 857, paragraph 2, and Case C-2/88 Imm. Zwartveld and Others [1990] ECR I‑3365, paragraph 20.
      
      	As regards Article 13 of the Protocol, see Case T-497/93 Hogan v Court of Justice [1995] ECR II‑703, paragraph 48.
      
      22 –	Opinion of Advocate General Jacobs in AGF Belgium (cited in footnote 3), paragraph 23. As regards Article 13 of the Protocol, see Case 6/60 Humblet v Belgium [1960] ECR 559, at 577, point C.
      
      23 –	On this point see also Article 2(1) of the Charter of the United Nations.
      
      24 –	Humblet (cited in footnote 22), 577, point (c).
      
      25 –	The tax exemption in Article 13 of the Protocol is distinguishable in terms of both its scope of application and its content:
         Article 13 of the Protocol contains a tax exemption for officials and other servants of the Communities from national taxes
         on salaries, wages and emoluments, whereas Article 3 of the Protocol exempts the Community itself from direct taxes and from
         indirect taxes and sales taxes in certain circumstances (see AGF Belgium, cited in footnote 3), paragraph 14). However, the purposes of the exemptions overlap to a large degree. In addition to the
         two grounds identified above, the tax exemption under Article 13 is based also on the principle of equal treatment of officials.
         In fact, the tax exemption for officials may be traced back to the fact that their salaries are subject to a unified tax which
         is paid directly to the Community. This is intended to ensure that all officials receive equal pay for equal work (see Humblet, cited in footnote 22).
      
      26 –	Humblet (cited in footnote 22), Commission v Belgium (cited in footnote 7), paragraph 10, and Vander Zwalmen and Massart (cited in footnote 8), paragraph 21.
      
      27 –	See the Opinion of Advocate General Mischo in Commission v Belgium (cited in footnote 7), paragraph 24.