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BY LETTER DATED 18 AUGUST 1967 WHICH REACHED THE COURT REGISTRY ON 21 AUGUST 1967 THE GERECHTSHOF OF THE HAGUE ( FIRST TAX CHAMBER ) REFERRED FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY THE QUESTION WHETHER THE EXEMPTION " FROM NATIONAL TAXES ON SALARIES, WAGES AND EMOLUMENTS PAID BY THE COMMUNITY " PROVIDED FOR IN THE SECOND PARAGRAPH OF ARTICLE 12 OF THE PROTOCOL ON THE PRIVILEGES AND IMMUNITIES ANNEXED TO THE EEC TREATY LIKEWISE REFERS TO THE SCHOOL LEVY CHARGED UNDER THE NETHERLANDS LAW ON SCHOOL LEVY ( SCHOOLGELDWET ).
THE SAID QUESTION CONCERNS THE SCHOOL LEVY CLAIMED FROM AN OFFICIAL OF THE EEC WHOSE CHILD, DURING THE SCHOOL YEAR 1964-1965, ATTENDED A SCHOOL IN ROTTERDAM FINANCED FROM PUBLIC FUNDS . IT APPEARS FROM THE FACTS SUPPLIED BY THE COURT MAKING THE REFERENCE THAT THIS LEVY APPLIES ONLY TO CHILDREN WHO ATTEND COURSES OF EDUCATION WHICH ARE NOT COMPULSORY AND IS CALCULATED IN PROPORTION TO INCOME TAX UP TO A MAXIMUM OF FL . 200 . FURTHERMORE, THE LAW PROVIDES THAT A PERSON LIABLE WHO IS PARTIALLY OR COMPLETELY EXEMPT FROM INCOME TAX SHALL PAY THE MAXIMUM LEVY UNLESS HE PROVES THAT IF THIS EXEMPTION DID NOT APPLY HE WOULD BE LIABLE TO PAY A LESSER SUM . ON BEING ASSESSED TO LEVY IN THE SUM OF FL.120, THE PLAINTIFF BROUGHT AN ACTION BEFORE THE COURT OF APPEAL, CLAIMING THAT UNDER ARTICLE 12 OF THE BEFOREMENTIONED PROTOCOL HE IS EXEMPT FROM NATIONAL TAXES ON SALARY PAID TO HIM BY THE COMMUNITY AND THEREFORE FROM SCHOOL LEVIES CALCULATED ON THE BASIS OF THIS SALARY .
THE QUESTION REFERRED FOR A PRELIMINARY RULING SEEKS AN INTERPRETATION OF THE SECOND PARAGRAPH OF ARTICLE 12 OF THE PROTOCOL ON THE PRIVILEGES AND IMMUNITIES ANNEXED TO THE EEC TREATY AND IN PARTICULAR THE WORDS " NATIONAL TAXES ON SALARIES, WAGES AND EMOLUMENTS PAID BY THE COMMUNITY ". IN THIS RESPECT THE SECOND PARAGRAPH OF THE SAID ARTICLE 12 CANNOT BE READ IN ISOLATION FROM THE FIRST, WHICH PROVIDES THAT, IN ACCORDANCE WITH THE CONDITIONS AND PROCEDURE LAID DOWN BY THE COUNCIL, OFFICIALS AND OTHER SERVANTS OF THE COMMUNITY SHALL BE LIABLE TO A TAX FOR THE BENEFIT OF THE COMMUNITY ON SALARIES, WAGES AND EMOLUMENTS PAID TO THEM BY THE COMMUNITY . IT IS AS A RESULT OF THIS PROVISION THAT THE SECOND PARAGRAPH EXEMPTS SALARIES, WAGES AND EMOLUMENTS SUBJECT TO TAX FOR THE BENEFIT OF THE COMMUNITY FROM NATIONAL TAXES, SO THAT THE ARTICLE TAKEN AS A WHOLE ENSURES A UNIFORM TREATMENT OF THE SAID SALARIES, WAGES AND EMOLUMENTS FOR ALL THE OFFICIALS AND SERVANTS OF THE COMMUNITY, PREVENTING, FIRST AND CHIEFLY, THEIR EFFECTIVE REMUNERATION FROM DIFFERING ACCORDING TO THEIR NATIONALITY OR FISCAL DOMICILE AS A RESULT OF THE ASSESSMENT OF DIFFERENT NATIONAL TAXES, AND SECONDLY PREVENTING THIS REMUNERATION FROM BEING INORDINATELY TAXED AS A RESULT OF DOUBLE TAXATION . IT APPEARS FROM THIS CONTEXT THAT THE SECOND PARAGRAPH OF ARTICLE 12 REFERS, LIKE THE FIRST PARAGRAPH, TO NATIONAL TAXES ON SALARIES, NO MATTER WHAT FORM SUCH TAXES TAKE OR WHATEVER THEY ARE CALLED .
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AS REGARDS THE INTERPRETATION OF THE PROVISIONS REFERRED TO IT IS PROPER TO DISTINGUISH BETWEEN A TAX INTENDED TO PROVIDE FOR THE GENERAL EXPENSES OF PUBLIC AUTHORITIES AND A DUE CONSTITUTING A CONSIDERATION FOR A GIVEN SERVICE . THE NATIONAL LAW OF VARIOUS MEMBER STATES RECOGNIZES THIS DISTINCTION IN DIFFERENT FORMS AND UNDER VARIOUS NAMES . MOREOVER THE PROTOCOL ON THE PRIVILEGES AND IMMUNITIES OF THE COMMUNITY ITSELF RECOGNIZES THE DISTINCTION, SINCE THE FIRST PARAGRAPH OF ARTICLE 3 THEREOF PROVIDES THAT THE COMMUNITY, ITS ASSETS, REVENUES AND OTHER PROPERTY SHALL BE EXEMPT FROM ALL DIRECT TAXES AND THE LAST PARAGRAPH THAT NO EXEMPTION SHALL BE GRANTED IN RESPECT OF TAXES AND DUES WHICH AMOUNT MERELY TO CHARGES FOR PUBLIC UTILITY SERVICES .
NEITHER THE SPIRIT NOR THE WORDING OF THE EXEMPTION PROVIDED FOR IN THE SECOND PARAGRAPH OF ARTICLE 12 OF THE PROTOCOL CONTAINS ANY FACTOR CAPABLE OF BEING RELIED UPON AGAINST THE CHARGES AND DUES REQUIRED AS A CONSIDERATION FOR A GIVEN SERVICE SUPPLIED BY PUBLIC AUTHORITIES . THIS CONCLUSION REMAINS VALID EVEN IN A CASE IN WHICH THE AMOUNT OF THE CHARGE TO BE PAID IS DETERMINED BY REFERENCE TO THE INCOME OF THE PERSON CONCERNED .
WHERE, IN RELATION TO DUES, MODERN LAWS FOR REASONS OF A SOCIAL NATURE OFTEN TAKE ACCOUNT OF THE ABILITY TO PAY ON THE PART OF THE PERSONS CONCERNED, THIS FACT DOES NOT DIVEST THE DUE OF ITS QUALITY OF A CHARGE CONSTITUTING THE CONSIDERATION FOR A GIVEN SERVICE . IT IS ONLY WHERE, AS A RESULT OF THE FIXING OF THE RATE OF THE DUE IN THIS WAY, IT APPEARS TO EXCEED THE REASONABLE PAYMENT FOR THE SERVICE RENDERED, THAT UNDER CERTAIN CIRCUMSTANCES ITS COMPATIBILITY WITH THE SECOND PARAGRAPH OF ARTICLE 12 MAY NEED TO BE CONSIDERED . A COMPLAINT OF THIS NATURE HAS NOT BEEN MADE IN THE PRESENT CASE AND MOREOVER THE ASSESSMENT OF ITS RELEVANCE WOULD PRIMARILY BE A MATTER FOR THE NATIONAL COURT CONCERNED .
FOR THESE REASONS A CHARGE OR DUE REPRESENTING THE CONSIDERATION FOR A GIVEN SERVICE RENDERED BY THE PUBLIC AUTHORITIES, SUCH AS THE SCHOOL LEVY IN QUESTION IN THE PRESENT CASE, WHICH, MOREOVER, IS ONLY PAYABLE IN RESPECT OF NON - COMPULSORY EDUCATION, IS NOT A TAX WITHIN THE MEANING OF THE SECOND PARAGRAPH OF ARTICLE 12 OF THE PROTOCOL ON THE PRIVILEGES AND IMMUNITIES OF THE COMMUNITY, EVEN IF THAT CHARGE OR DUE IS CALCULATED ON THE BASIS OF THE SALARY PAID BY THE COMMUNITY TO THE PERSON LIABLE .
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THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES AND THE GOVERNMENTS OF THE MEMBER STATES, WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE, AND AS THE PROCEEDINGS ARE, IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED, A STEP IN THE ACTION PENDING BEFORE THE GERECHTSHOF OF THE HAGUE ( FIRST TAX CHAMBER ), THE DECISION ON COSTS IS A MATTER FOR THAT COURT .
THE COURT
IN ANSWER TO THE QUESTION REFERRED TO IT BY THE GERECHTSHOF OF THE HAGUE ( FIRST TAX CHAMBER ) BY LETTER DATED 18 AUGUST 1967, HEREBY RULES :
A CHARGE OR DUE REPRESENTING THE CONSIDERATION FOR A GIVEN SERVICE RENDERED BY THE PUBLIC AUTHORITIES IS NOT A TAX WITHIN THE MEANING OF THE SECOND PARAGRAPH OF ARTICLE 12 OF THE PROTOCOL ON THE PRIVILEGES AND IMMUNITIES OF THE COMMUNITY ANNEXED TO THE EEC TREATY, EVEN IF THAT CHARGE OR DUE IS CALCULATED ON THE BASIS OF THE SALARY PAID BY THE COMMUNITY TO THE PERSON LIABLE;
AND DECLARES :
IT IS FOR THE GERECHTSHOF AT THE HAGUE TO DECIDE THE QUESTION OF COSTS IN THE PRESENT CASE .
