Opinion of Mr Advocate-General Reischl

Mr President,

Members of the Court,

By an order dated 30 January 1974 the Gerechtshof of The Hague has referred a series of questions on the interpretation of Article 13 of the Protocol on the Privileges and Immunities of the European Communities dated 8 April 1965.

These questions relate to the following facts.

Mr Eduard Rudolph von Geldern, Director-General in the General Secretariat of the Council of Ministers, died in December 1971, resident in Belgium. He left a widow and three children. Under his will his estate was divided equally between his three children, subject to the widow's life interest in the net estate. Besides this the widow was entitled to a life assurance, a pension resulting from a pension scheme of a former private employer of the deceased and a survivor's pension from the European Communities under the Staff Regulations of these Communities.

Having regard to Article 14 of the said Protocol, under which in the application of income tax, wealth tax and death duties … officials … of the Communities who, solely by reason of the performance of their duties in the service of the Communities, establish their residence in the territory of a Member State other than their country of domicile for tax purposes at the time of entering the service of the Communities, shall be considered, both in the country of their actual residence and in the country of domicile for tax purposes, as having maintained a domicile in the latter country provided that it is a member of the Communities, and because Mr von Geldern was previously domiciled in the Netherlands, the Dutch tax office proceeds on the basis that the Dutch Succession Law applies to the said estate.

The Dutch Succession Law, viz. the Law of 28 June 1956 as subsequently amended, provides that survivors' pensions, payable under an agreement contained in a contract of employment concluded by the deceased spouse, shall be treated as acquired by inheritance. On the other hand, pensions of a public law nature and pensions which are paid under a pension scheme are not subject to succession duty. Further, the Succession Law provides that the interest of a spouse up to an amount of Fl. 250000 is free of duty. However, the capital value of the pension which the spouse receives free of succession duty, is up to a maximum of Fl. 240000, deducted from the duty-free amount.

On applying these provisions and having regard to the value of the pensions paid by the former private employer and also by the European Communities, the Dutch Revenue came to the conclusion that the free allowance of the widow of the deceased Mr van Geldern had been used up to the extent of the full legal amount of Fl. 240000. Having regard to the remaining free allowance amounting to Fl. 10000 and the value of Mrs von Geldern's interest (life assurance and the capital value of her life interest) the Revenue assessed some Fl. 15000 succession duty.

Mrs von Geldern does not agree with this. She does not agree that the capital value of the survivor's pension paid by the European Communities should be taken into account in the assessment of the free allowance due to her. This is prohibited in her view by the second paragraph of Article 13 of the aforesaid Protocol, in which it is stated that officials and other servants of the Communities shall be exempt from national taxes on salaries, wages and emoluments paid by the Communities.

She therefore made a complaint against the notice of assessment served on her and since this met with no success she appealed to the Gerechtshof at The Hague.

Having regard to the objections based on Community law the Gerechtshof stayed the proceedings by the aforementioned order and referred four questions, the exact terms of which I will not read out now, for a preliminary ruling. The parties to the main proceedings, the Government of the Kingdom of the Netherlands and the Council and the Commission of the European Communities have submitted observations on these questions.

1 Translated from the German.