AGF Belgium SA v European Economic Community, Institut National d'Assurance Maladie-Invalidité (INAMI), Fonds National de Reclassement Social des Handicapés, Croix-Rouge de Belgique and Belgian State.
Date: 1996-03-28
12. It is true that, in interpreting certain provisions of the Protocol, the Court has distinguished between a tax intended to provide for the general expenses of public authorities and a contribution intended to finance a social security scheme, even if such a contribution is levied in a manner resembling the levying of taxes (see Case 23/68  Klomp  v  Inspektie der Belastingen  [1969] ECR 43, paragraphs 18 to 22).
14. First, as the Commission points out, that judgment concerned the interpretation of provisions of the Protocol which exempt officials and other servants of the Communities from national taxes on salaries, wages and emoluments paid to them.  That exemption relates specifically to servants of the Communities and is limited to national taxes which could be charged on the income arising from performance of their functions, which is subject to Community tax.  In the present case the provisions of the Protocol in issue are those which exempt the Communities themselves from all direct taxes and provide, furthermore, for the amount of indirect taxes or sales taxes included in purchases made by them in certain circumstances to be remitted or refunded.
18. As the Commission states, contributions of that kind constitute internal taxation as referred to in the fiscal provisions of the Treaty.  According to the case-law of the Court, the fact that a tax or levy is collected by a body governed by public law other than the State or is collected for its benefit and is a charge which is special or appropriated for a specific purpose cannot prevent its falling within the scope of those provisions (see Case 74/76  Iannelli & Volpi  v  Meroni  [1977] ECR 557, paragraph 19).
19. In accordance with Article 28 of the Treaty establishing a Single Council and a Single Commission of the European Communities, to which the Protocol is annexed, the European Communities are to enjoy in the territories of the Member States such privileges and immunities as are necessary for the performance of their tasks.  The fiscal immunity granted to them in that connection, in order in particular to ensure their independence with regard to the Member States and their proper functioning, is defined by the Protocol in very broad terms.  Thus Article 3 provides not only that the Communities, their assets, revenues and other property shall be exempt from all direct taxes, but also that the Member States are 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.
25. As the Court has already held, the distinction between a tax intended to provide for the general expenses of public authorities and a due constituting consideration for a given service, which is recognized in the national law of various Member States, is expressly recognized by Article 3 of the Protocol (see Case 32/67  Van Leeuwen  v  Rotterdam  [1968] ECR 43).
26. On that point it should be noted that the very concept of consideration for a specific service presupposes that that service is provided, or at least may be provided, to those paying the charge.  A contribution cannot therefore constitute mere remuneration for public utility services, within the meaning of the third paragraph of Article 3 of the Protocol, unless such services are provided, or at least are capable of being provided, to those who have to pay the contribution.