(Reference for a preliminary ruling from the Unabhängiger Finanzsenat, Außenstelle Wien)

(Protocol on the Privileges and Immunities of the European Communities – Staff regulations – Conditions of employment applicable to other servants – Local member of staff at the representation of the Commission in Austria – Tax treatment)

Opinion of Advocate General Geelhoed delivered on 28 April 2005

Judgment of the Court (First Chamber), 8 September 2005

Summary of the Judgment

Privileges and immunities of the European Communities — Officials and servants of the Communities — Decision of a community institution defining the status of one of its servants and determining his conditions of employment — Binding on the national activities

(Protocol on the privileges and immunities of the European Communities, Arts 13 and 16)

For the purposes of applying Articles 13 and 16 of the Protocol on the Privileges and Immunities of the European Communities, the decision of a Community institution defining the status of one of its servants and determining his conditions of employment is binding on national judicial and administrative authorities, so that they cannot make an independent classification of the employment relationship in question.

(see para. 39, operative part)

8 September 2005 (*)

(Protocol on the Privileges and Immunities of the European Communities – Staff regulations – Conditions of employment applicable to other servants – Local member of staff at the representation of the Commission in Austria – Tax treatment)

In Case C-288/04,

Reference for a preliminary ruling under Article 234 EC from the Unabhängiger Finanzsenat, Außenstelle Wien (Austria), made by decision of 28 June 2004, received at the Court on 6 July 2004, in the proceedings

THE COURT (First Chamber),

composed of P. Jann, President of the Chamber, K. Lenaerts, K. Schiemann, E. Juhász (Rapporteur) and M. Ilešič, Judges,

Advocate General: L.A. Geelhoed,

Registrar: R. Grass,

after considering the observations submitted on behalf of:

– the Austrian Government, by H. Dossi, acting as Agent,

– the French Government, by G. de Bergues and C. Jurgensen-Mercier, acting as Agents,

– the Portuguese Government, by L. Fernandes and M. Mesquita Palha, acting as Agents,

– the Commission of the European Communities, by H. Krämer and C. Ladenburger, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 28 April 2005,

gives the following

This reference for a preliminary ruling concerns the interpretation of Articles 13 and 16 of the Protocol on the Privileges and Immunities of the European Communities, originally annexed to the Treaty establishing a Single Council and a Single Commission of the European Communities, signed on 8 April 1965, then, by virtue of the Treaty of Amsterdam, to the EC Treaty (‘the Protocol’).

The reference was made in the course of proceedings between AB, a local member of staff assigned to the Representation of the European Commission in Vienna, and the Finanzamt für den 6., 7. und 15. Bezirk (the competent Austrian tax authority, ‘the Finanzamt’) concerning AB’s liability to national income tax.

Legal context

Community law

Directive 2011/92

Recitals 7 to 9 of Directive 2011/92 state:

‘(7) Development consent for public and private projects which are likely to have significant effects on the environment should be granted only after an assessment of the likely significant environmental effects of those projects has been carried out. …

(8) Projects belonging to certain types have significant effects on the environment and those projects should, as a rule, be subject to a systematic assessment.

(9) Projects of other types may not have significant effects on the environment in every case and those projects should be assessed where the Member States consider that they are likely to have significant effects on the environment.’

Article 2(1) of that directive provides:

‘Member States shall adopt all measures necessary to ensure that, before development consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects on the environment. Those projects are defined in Article 4.’

Under Article 3(1) of that directive:

‘The environmental impact assessment shall identify, describe and assess in an appropriate manner, in the light of each individual case, the direct and indirect significant effects of a project on the following factors:

…

(b) biodiversity, with particular attention to species and habitats protected under [Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7), as amended by Council Directive 2013/17/EU of 13 May 2013 (OJ 2013 L 158, p. 193) (“Directive 92/43”)] and Directive 2009/147/EC [of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (OJ 2010 L 20, p. 7)];

…’

Article 4 of Directive 2011/92 provides:

‘1. Subject to Article 2(4), projects listed in Annex I shall be made subject to an assessment in accordance with Articles 5 to 10.

(a) a case-by-case examination;

(b) thresholds or criteria set by the Member State.

Member States may decide to apply both procedures referred to in points (a) and (b).

Where a case-by-case examination is carried out or thresholds or criteria are set for the purpose of paragraph 2, the relevant selection criteria set out in Annex III shall be taken into account. Member States may set thresholds or criteria to determine when projects need not undergo either the determination under paragraphs 4 and 5 or an environmental impact assessment, and/or thresholds or criteria to determine when projects shall in any case be made subject to an environmental impact assessment without undergoing a determination set out under paragraphs 4 and 5.

Where Member States decide to require a determination for projects listed in Annex II, the developer shall provide information on the characteristics of the project and its likely significant effects on the environment. The detailed list of information to be provided is specified in Annex IIA. The developer shall take into account, where relevant, the available results of other relevant assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The developer may also provide a description of any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

The competent authority shall make its determination, on the basis of the information provided by the developer in accordance with paragraph 4 taking into account, where relevant, the results of preliminary verifications or assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The determination shall made available to the public and:

(a) where it is decided that an environmental impact assessment is required, state the main reasons for requiring such assessment with reference to the relevant criteria listed in Annex III; or

(b) where it is decided that an environmental impact assessment is not required, state the main reasons for not requiring such assessment with reference to the relevant criteria listed in Annex III, and, where proposed by the developer, state any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

Member States shall ensure that the competent authority makes its determination as soon as possible and within a period of time not exceeding 90 days from the date on which the developer has submitted all the information required pursuant to paragraph 4. In exceptional cases, for instance relating to the nature, complexity, location or size of the project, the competent authority may extend that deadline to make its determination; in that event, the competent authority shall inform the developer in writing of the reasons justifying the extension and of the date when its determination is expected.’

Annex II.A of that directive contains the list of ‘information to be provided by the developer on the projects listed in Annex II’. That list reads as follows:

‘1. A description of the project, including in particular:

(a) a description of the physical characteristics of the whole project and, where relevant, of demolition works;

(b) a description of the location of the project, with particular regard to the environmental sensitivity of geographical areas likely to be affected.

3. A description of any likely significant effects, to the extent of the information available on such effects, of the project on the environment resulting from:

(a) the expected residues and emissions and the production of waste, where relevant;

(b) the use of natural resources, in particular soil, land, water and biodiversity.

Annex III to that directive sets out the ‘criteria to determine whether the projects listed in Annex II should be subject to an environmental impact assessment’.

Directive 2014/52

Recitals 11 and 29 of Directive 2014/52 state:

‘(11) The measures taken to avoid, prevent, reduce and, if possible, offset significant adverse effects on the environment, in particular on species and habitats protected under [Directive 92/43] and Directive 2009/147 …, should contribute to avoiding any deterioration in the quality of the environment and any net loss of biodiversity, in accordance with the [European] Union’s commitments in the context of the [United Nations Convention on Biological Diversity, signed in Rio de Janeiro on 5 June 1992,] and the objectives and actions of the Union Biodiversity Strategy up to 2020 laid down in the [Communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions] of 3 May 2011 entitled ‘Our life insurance, our natural capital: an EU biodiversity strategy to 2020’ [(COM(2011) 244 final)]

…

(29) When determining whether significant effects on the environment are likely to be caused by a project, the competent authorities should identify the most relevant criteria to be considered and should take into account information that could be available following other assessments required by Union legislation in order to apply the screening procedure effectively and transparently. In this regard, it is appropriate to specify the content of the screening determination, in particular where no environmental impact assessment is required. Moreover, taking into account unsolicited comments that might have been received from other sources, such as members of the public or public authorities, even though no formal consultation is required at the screening stage, constitutes good administrative practice.’

Directive 92/43

Article 6(3) of Directive 92/43 provides:

‘Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.’

Article 12(1) of that directive provides:

‘Member States shall take the requisite measures to establish a system of strict protection for the animal species listed in Annex IV(a) in their natural range, prohibiting:

(a) all forms of deliberate capture or killing of specimens of these species in the wild;

(b) deliberate disturbance of these species, particularly during the period of breeding, rearing, hibernation and migration;

(c) deliberate destruction or taking of eggs from the wild;

(d) deterioration or destruction of breeding sites or resting places.’

Point (a) of Annex IV to that directive mentions ‘all species’ of bats belonging to the suborder of ‘microchiroptera’.

Irish law

20The order for reference further shows the applicant to be arguing that, on the strength of the duties he carries out, he should have been engaged not as a local staff member but as a temporary or auxiliary staff member within the meaning, respectively, of Articles 8 to 50a or 51 to 78 of the CEOS, and benefit from the provisions of Article 13 of the Protocol exempting him from national income tax on salaries, wages and emoluments paid by the Communities. Therefore, in accordance with the Bundesabgabenordnung and with the case-law of the Verwaltungsgerichtshof, the Finanzamt should have examined the true nature of his duties and not have subjected him to liability for national income tax, since those duties correspond to duties falling within Category A of the Staff Regulations normally carried out by temporary or auxiliary members of staff who are liable to Community tax.

21The Finanzamt takes the view that it is for the Community institution concerned to determine the conditions of employment of its members of staff. That view is shared by the Unabhängiger Finanzsenat, which considers that the conditions of employment of a member of staff derive exclusively from the contract of employment concerned. The applicant could or ought, therefore, to have submitted the legality of his contract of employment to the judicial review of the Court.

22Taking the view that the abovementioned case-law of the Verwaltungsgerichthof might lead to the person concerned being exempt from tax both at national and Community level, the Unabhäbgiger Finanzsenat Außenstelle Wien decided to stay its proceedings and to refer the following questions to the Court for a preliminary ruling:

1.‘1. Does the first paragraph of Article 13 of the Protocol … preclude the taxation in the Member States of the salaries, wages and emoluments which the Communities pay to their officials and other servants only if the European Communities exercise their right of taxation?

2.Does the second paragraph of Article 16 of the Protocol … preclude the taxation in the Member States of the salaries, wages and emoluments which the Communities pay to their officials and other servants only if those officials or other servants are listed in a communication within the meaning of that article, and does a communication forwarded on the basis of that article automatically entitle the tax authorities of the Member State to exercise the national right of taxation in respect of officials and other servants not listed in that communication and thus in respect of those servants whom the European Communities regard as local staff?’

The questions referred for a preliminary ruling

23Since the two questions referred are closely linked, it is appropriate to examine them together.

24Those questions, placed in the legal and factual context set out above, indicate that the national court is unsure whether, for the purposes of applying Articles 13 and 16 of the Protocol, the decision of a Community institution defining the status of one of its members of staff and determining his conditions of employment is binding on the national administrative and judicial authorities, so that those authorities cannot independently classify the employment relationship in question.

25Articles 11 of the Staff Regulations and of the CEOS, in the versions in force both before and after 1 May 2004 (the date on which the new Staff Regulations entered into force), provide that the official or servant is to carry out his duties and conduct himself ‘solely with the interests of the Communities in mind, he is to neither seek nor take instructions from any government, authority, organisation or person outside his institution’.

26Article 2 of the Staff Regulations and Article 6 of the CEOS, in the versions applicable both before and after 1 May 2004, also enshrine the principle of the functional autonomy of the Community institutions as to their choice of officials and servants, providing that each institution is to determine the authorities within it which are to exercise the powers conferred by the Staff Regulations on the appointing authority or who are empowered to conclude contracts of employment with other servants.

27The institutional and functional autonomy is guaranteed, inter alia, by assigning immunities and privileges necessary for the performance of the tasks of the Community institutions on the basis of overriding provisions, namely the Protocol. Thus, it is provided in the Protocol that certain categories of officials and other servants of the institutions, to be determined by the Council alone on the proposal of the Commission and after consultation with the other institutions, are subject, for the benefit of the Communities, to a tax on salaries, wages and emoluments paid by them and are, in parallel, exempt from national taxes on those salaries, wages and emoluments (Articles 13 and 16 of the Protocol).

28It is clear from those principles and from the legal framework set out above that the Community institutions have a wide margin of discretion and autonomy as regards the creation of posts for officials, the choice of the official or servant in order to fill the post created, and as regards the nature of the employment relationship with the servant, subject to the provisions of the Staff Regulations and the CEOS, and according to the funds available.

29In the same way, as the Advocate General pointed out in point 16 of his Opinion, the Council alone is competent, on the basis of Article 16 of the Protocol, to determine the scope ratione personae of the tax system laid down in Article 13.

30The autonomy of the Community institutions is also underlined by the fact that, in accordance with Article 79 of the CEOS, the conditions of employment of local staff and, in particular, the detailed rules for their engagement are laid down by the Community institution concerned. Since the words ‘the manner of their engagement’ in the provision in question, includes the determination of the conditions of employment of the servants concerned, the text under consideration is designed to prevent the determination of those conditions by non-Community bodies.

31That conclusion is confirmed by the case-law of the Court, according to which the conferment of the status of official or servant may only reside in a formal act of the institution concerned and cannot be based on a decision of a national legal or administrative authority. That would constitute an encroachment on the autonomy of the Community institutions (Case 65/74 Porrini and Others [1975] ECR 319, paragraph 15 and point 2 of the operative part, and Case 232/84 Tordeur and Others [1985] ECR 3223, paragraphs 27 and 28).

32The legal status of officials and temporary and auxiliary staff, on the one hand, and that of local staff, on the other, are fundamentally different in nature. While posts for officials, temporary staff and auxiliary staff are governed exclusively by Community law and the disputes to which those relationships may give rise fall within the exclusive jurisdiction of the Community courts, the contracts of employment of local staff are subject to hybrid rules, comprising Community and national sources, and the disputes to which those contracts of employment may give rise fall within the jurisdiction of the national courts. Finally, local staff do not enjoy the exemption from national tax on salaries, wages and emoluments paid by the Communities.

33The conditions of employment for temporary and auxiliary staff are largely the same as those for officials. Both temporary and auxiliary staff are essentially subject to the same requirements concerning their engagement, have the same rights and obligations as those laid down for officials in Articles 11 to 25 of the Staff Regulations, are subject to the same rules concerning the duration and hours of work, enjoy essentially the same rights as regards leave and, finally, on account of the fact that they are governed by the same rules, may use the same system of legal remedies before the Community courts.

34In accordance with the case‑law of the Court, given the incompatibility between the conditions of employment for officials, temporary and auxiliary staff on the one hand and those for local staff on the other, the transition from being a local member of staff to a post as an official, temporary or auxiliary member of staff automatically terminates the previous employment relationship, and, conversely, the resumption of the previous activities would constitute a new employment and not the continuation of the previous employment relationship (Case 105/80 Desmedt [1981] ECR 1701, paragraph 15 and operative part). Thus, if the applicant’s employment relationship could be regarded as that of a temporary or auxiliary staff member, that employment relationship would have to be classified as a new employment, which, in accordance with the judgments in Porrini and Tordeur, would exclude the possibility of such a new employment having arisen from the action of a body other than a Community one.

35Therefore, the classification of ‘local member of staff’ conferred on a person by the competent authority of a Community institution and the nature of the employment relationship defined in the contract of employment of the servant in question cannot be challenged on the basis of an independent assessment of a national administrative or judicial authority. To recognise such a right would effectively grant a national authority the power to intervene in the sphere of autonomy of the Community institutions and to define the nature of the contract of engagement of one of their servants, which would constitute an encroachment within the meaning of the case-law cited in paragraph 31 of this judgment.

36In the context of effective judicial protection enjoyed by the member of staff in question, it must of course be open to him to challenge the classification of his conditions of employment under the provisions of the CEOS. However, such a power must be exclusively reserved for the Community courts, since review of the legality of a decision of the competent authority of a Community institution conferring the status of official or servant and determining, by the conclusion of the contract relating thereto, the nature of the latter’s employment relationship, cannot fall within the jurisdiction of a national court.

37The national courts retain jurisdiction, in accordance with Article 81 of the CEOS, to hear disputes concerning the conditions of employment of a local member of staff, as provided by Article 79 of the CEOS. However, the act of a Community institution determining the conditions of employment of one of its servants cannot be challenged before those courts.

38It should be observed, finally, that the system established by the Protocol, according to which, for the benefit of the Communities, its officials and some of its servants are subject only to a Community tax, is designed solely to strengthen the autonomy of the Community institutions and can neither promote nor have as its effect the exemption of other servants from taxation laid down by the tax law of the place of employment.

39In the light of the foregoing considerations, the answer to the questions referred must be that, for the purposes of applying Articles 13 and 16 of the Protocol, the decision of a Community institution defining the status of one of its servants and determining his conditions of employment is binding on national judicial and administrative authorities, so that they cannot make an independent classification of the employment relationship in question.

Costs

40Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court of Justice (First Chamber) hereby rules:

For the purposes of applying Articles 13 and 16 of the Protocol on the Privileges and Immunities of the European Communities, the decision of a Community institution defining the status of one of its servants and determining his conditions of employment is binding on national judicial and administrative authorities, so that they cannot make an independent classification of the employment relationship in question.

[Signatures]

*

Language of the case: German.