C-85/86

Mr President, question which has been placed before the Members of the Court, Court. In other words, the Court's judgment could affect the claims of the. Court of Auditors and the European Parliament to oversee — in accounting terms and at the political level, 1. T h e Court is called upon to consider an respectively — the operations carried out by action brought by the Commission of the the Bank using funds from the Community European Communities on 19 March 1986 budget. against the Board of Governors of the European Investment Bank (hereinafter referred to as 'the Bank'). The Commission seeks a declaration annulling the decision 2. In order to have a better understanding taken by the Board of Governors of 30 of the subject-matter of the dispute it may December 1985 on the 'disposal of the be useful to adumbrate, albeit only proceeds of the income tax withheld by the summarily and with particular reference to Bank from salaries and pensions paid to its the situation of the Bank, the history of the staff', which precluded the payment of the Community tax on remuneration. sums concerned into the Community budget and at the same time confirmed a practice which, albeit implemented differently, goes back to the 1962 financial year. The Commission argues that this infringes the Under the system of the European Coal and EEC Treaty and the provisions laid down Steel Community staff were not subject to for its implementation. any tax at all. Article 11 (b) of the Protocol on Privileges and Immunities annexed to the Treaty of Paris provided that within the territory of each of the six Member States, members of the High Authority and officials T h e proceedings — in which recourse is of the Community, irrespective of their being made for the first time to Article nationality, were to be 'exempt from any tax 180 (b) of the EEC Treaty — is of major on salaries'. The members and staff of the importance both because the accumulated Court of Justice were treated likewise by revenue of 25 years' tax amounts to a very virtue of Articles 3, 14 and 16 of its Statute. considerable sum and because the parties' However, that privilege — which, moreover, arguments are based on radically different conflicted with the practice followed in ideas as to the legal nature of the Bank and other international bodies (see Bedjaoui, hence necessitate in-depth reflection on the Fonction publique internationale et influences position of that important body within the nationales, London, 1958, pp. institutional machinery of the Treaty. As 249-276) — appeared to be incompatible both the parties have pointed out, the with the principle that citizens should be subject-matter of the proceedings is treated equally with respect to tax and especially delicate in so far as it is liable to immediately came in for sharp criticism of overflow beyond the confines of the which Michel Debré was a particularly

Under Article 12 the Council should have Prompted thereby to take a fresh look at laid down the conditions and the amount of the matter, the authors of the Treaty of the tax on the basis of 'proposals which the Rome considered that the exemption from Commission shall make within one year of national tax should cease to be in the nature the entry into force of the Treaty'. of a privilege and should become the mere However, that period turned out to be too consequence of the charging of a short. The EEC and Euratom Commissions Community tax. This approach is evidenced submitted their initial proposals on 22 by the wording of the Protocol on the December 1958 and it was not until 18 Privileges and Immunities of the European December 1961 that the corresponding Communities and in particular Article 12 Councils adopted the rules unanimously thereof. Indeed the first paragraph of Article (Regulation No 32/61 (EEC)/12/61 (EAEC) 12 establishes that 'officials and other laying down the conditions and procedure servants of the Community shall be liable to for applying the tax for the benefit of the a tax for the benefit of the Community on European Communities pursuant to the first salaries, wages and emoluments paid to paragraph of Article 12 of the Protocol on them by the Community, in accordance Privileges and Immunities, Journal Officiel with the conditions and procedure laid 1962, 45 p. 1461). Indeed it appears from down by the Council . . . ' whereafter the the documents which the Commission second paragraph adds that the said officials was given leave to produce after the close and other servants shall be exempt 'from of the written procedure that in the course national taxes on salaries, wages and emol- of the drafting of Regulation No uments paid by the Community". 32/61 (EEC)/12/6 l(EAEC) the application of the tax to the salaries of the staff of the Bank was the subject of complex and, at times, lively debate. Articles 19 and 20 extended that provision to cover members of the Commission and of the Court. In contrast, the Bank is dealt Let us retrace its stages, which culminated with in Article 21, which provides that the in the adoption of the regulation, since they protocols as a whole shall apply 'also . . . to are of considerable importance in order to the members of its organs, to its staff and to understand the arguments adopted by the the representatives of the Member States parties, in this dispute. By letter of taking part in its activities, without prejudice 6 September 1960 the President of the Bank to the provisions of the Protocol on the informed the President of the Committee of Statute of the Bank'. Article 21 goes on to Permanent Representatives ('Coreper') of lay down that 'the European Investment the view taken by the Bank's Management Bank s h a l l . . . be exempt from any form of Committee. The latter interpreted the taxation or imposition of a like nature on relevant rules of the Protocol in question as the occasion of its constitution and of any meaning that the powers vested by Article increase in its capital and from the various 12 in the Council and Commission, qua formalities which may be connected organs of the entity known as the EEC,

should have been conferred, as far as the and those of the EEC but only in so far as Bank was concerned, on those organs of the they carry out duties which are effectively Bank which corresponded to the Council similar and only in so far as there is no and the Commission of the EEC, that is to conflict with principles of a higher rank. say on the Board of Governors and on the Indeed, taxation may only be imposed by Board of Directors. In this view the Board legislation: consequently it seems logical of Governors would have laid down the that the power of taxation should be rules and determined the intended use of exercised by the institutions, namely by the the tax applicable to the Bank's officials. As Council and the Commission of the far as possible, that is to say making Communities, on which the Treaty has allowance for the special character of the conferred the power to legislate.

It was should also have been applied to the Bank's opposed by the German delegation, which staff, albeit using the procedures required by considered that the tax provided for in the special nature of the Bank; and there is Article 12 was a right of territorial sover- an entry in the minutes of the Permanent eignty which the Member States had trans- Representatives' meeting held on 9 and 10 ferred to the Community and could not be February 1961 to the effect that the two earmarked for the exclusive benefit of the Presidents ultimately agreed on such a institutions and organs of which the formula.

Regulation N o 32/61(EEC)/12/61(EAEC) reflects the Bank's adherence to the At its meeting on 1 December 1960 the task Council's view. Article 9 thereof provides of defining Coreper's point of view was that 'the tax proceeds shall be entered as given to the Secretariat of the Councils, revenue in the budgets of the Communities' which produced a document (Document N o and Article 12 specifies that the regulation is 1254/60, 6 December 1960) in which the to 'apply to members of the organs of the Bank's view was firmly refuted. It states European Investment Bank, and to members therein that a 'correspondence' can be of its staff and recipients of the pensions it discerned between the organs of the Bank pays, who are included in the categories

determined by the Council [of the EEC] in February 1968 laying down the conditions application of the first paragraph of Article and procedure for applying the tax for the 15 of the Protocol on the Privileges and benefit of the European Communities Immunities, with regard to salaries, wages (Official Journal, English Special Edition and emoluments and to disability, 1968 (I), p. 37). But that instrument, too, retirement and survivor's pensions paid by simply reproduces, with slight formal the Bank'. amendments necessitated by the situation following the merger of the executive bodies, the provisions of Regulation No 32/61(EEC)/12/61(EAEC).

Rome. However, Articles 13 and 22 of the 255-267, and Drucker, Financing the new Protocol — which came into force on 1 European Communities, Leyden, 1975, July 1967 although it was drawn up on 8 pp. 135-137 and 248-251). April 1965 and is generally cited as being of that date — were extremely closely modelled on Articles 12 and 21 of the former version. Thus the new Article 13 provides that Officials and other servants of 3. As from 1 January 1962, that is to say the Communities shall be liable to a tax for the date on which Regulation No the benefit of the Communities on salaries, 32(EEC)/12(EAEC) entered into force, the wages and emoluments paid to them by the Bank withheld from the salaries and Communities, in accordance with the pensions paid by it a tax calculated pursuant conditions and procedure laid down by the to the aforementioned rules.

What issued Regulation N o 260/68 of 29 aroused the Commission from its inex-

In parallel and in connection with the 4. It is appropriate at this point to refer to a preliminary draft budgets for 1983, 1984, procedural issue which was raised in the 1985 and 1986 the Commission proposed t o initial stage of the proceedings. Under the Council that a new Chapter 49, Article Article 91 of the Rules of Procedure the 490, should be created in the budget as a Bank claimed that the action was inad- memorandum item to account for the missible on the ground that the application proceeds of the tax withheld from the incorrectly stated the name of the party salaries of the Bank's staff 'pending a against whom it was brought and hence decision of the Board of Governors' with failed to fulfil one of the conditions laid regard to the disposal thereof (see, for the down in that regard in Article 38 (1) of the 1985 budget, Document N o C O M (84) 200, Rules of Procedure. It was claimed that the Volume 7-A/86, p. 6). However, the Commission cited the 'European Investment Council rejected those suggestions on the Bank' as the defendant whereas it should ground that the Bank's receipts and expen- have cited the 'Board of Governors'. The ditures should be regarded as not being Bank and the Community are in fact in included in the Community budget; and, n o the same situation. The Community, too, less unexpectedly, the Parliament followed has legal personality; however, legal suit by refusing to propose that the proceedings may be brought only against its aforementioned article be reinserted. institutions.

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paragraph 1). The Court stated that nor items relating to the proceeds of the tax although the opening words of the and considers therefore that, as the body application wrongly cited the Bank, the responsible for carrying out the budget, the application expressly referred to Article Commission cannot seek the recovery of an 180 (b) of the EEC Treaty, according to item of revenue which is neither envisaged which the Commission may bring an action nor authorized under the relevant provisions against decisions of the Board of of the financial regulation of 21 December Governors, and clearly indicated the 1977 (Article 4 and Article 1 (1)

5. However, the Bank did not confine itself to that unsuccessful claim. In the defence it put forward a further three, very much more complex, objections of inadmissibility. The third objection is even more radical. I shall consider them seriatim. The real target of the action — the Bank maintains — is a decision of the 'Council of the European Communities, namely the decision whereby, contrary to a proposal by In the first place the Bank claims that the the Commission, the Council decided not to application is directed against an act which enter the proceeds of the tax withheld from has no effects as far as third parties are the salaries of the Bank's staff as revenue in concerned and, in any event, is incapable of the budget. Instead of contesting the

OPINION OF MR MANCINI —CASE 85/86

If it is argued that the conferral on the However, let us suppose that the Bank's Commission of the right to ask the Court to argument contains an element of truth; but rule on the validity of the insertion (or this does not mean that we have to accept non-insertion) of a revenue entry causes it the conclusions drawn therefrom. The Bank to lose the right to bring proceedings for the overlooks the fact that Article 200 (1) of infringement of a legislative measure such as the EEC Treaty refers to 'other revenue'

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The having some effects, including certainly the Commission begins by stating that, in effects which are of interest to us extending mutatis mutandis to the Bank the (Sacchettini, 'Dispositions financières', in Le rules laid down in the Protocol, Article 22 droit de la Communauté économique euro- of the Protocol does not identify the Bank péenne, Brussels 1982, Volume XI, p. 12 et as being a separate body of the Community seq.). but merely extends to it (together with its members and its staff) the benefit of a series of immunities and privileges; consequently, the provision does not confer on the Bank the right to appropriate the revenue from At this point there remains the objection to the tax charged on the remuneration of its the effect that the contested decision cannot officials. Moreover there is much evidence have effects on third parties and, at the for that view, starting with the wording of same time, does not have adverse effects. Article 13 which refers to 'the Communities' With regard to the second aspect the while not making the slightest reference t o Commission puts forward an argument the Bank. It will be objected that that which I find completely persuasive: no silence is of little probative value; however, provision of the Treaty — neither Article in view of the pains which the drafters of 180, nor Article 173, to which Article 180 the Treaty of Rome (Article 129), the expressly refers — requires a measure to Merger Treaty (Article 28) and the cause or be capable of causing adverse respective protocols took to distinguish effects in order for it to be capable of being between the two entities, it is bound to be

If the Bank were the recipient of the sums collected by means of that tax, there would be no explanation for the reference to the Community legislature alone; unless, of 7. Let us now turn to the substance of the course, one reads 'Board of Governors' and dispute, and I shall start by reviewing the 'Board of Directors' wherever the article arguments of the parties. As will be seen, refers to the two most important organs of the arguments echo those of the Bank and the Community. But the scope of the Coreper in the early 1960s in the course of provision in question militates against such

an interpretation. By adopting that provision governing the subject-matter in this case, the Member States transferred to the EEC the principle of application mutatis mutandis the crucial sovereign power of taxation; it is cannot be stretched to such an extent as to unthinkable that they should have intended make the Bank a parallel body and hence 'a to make such a sacrifice in favour of the third party' vis-à-vis the Community. Bank, which, albeit important, has an incomparably smaller institutional and

25 000 million). Furthermore, its creditors the case if the Bank were subordinate to the certainly are not unaware — and it is this on Community, but definitely on an original which they rely above all — that numerous basis. Hence, the EEC and the Bank are operations of the Bank are secured against two separate legal persons under interna- the Community's budget. tional law, which were created by the Treaty of Rome, and are on a completely equal footing in all respects (including the . power to conclude agreements with Lastly, Regulation N o 260/68 militates non-member countries — for example, the against the practice adopted by the Bank. agreement of 24 March 1972 between the T h e discussions prior to the adoption of the Bank and Switzerland). Moreover, that state regulation which Regulation N o 260/68 of affairs is reflected in the internal reproduces speak for themselves; however, arrangements of the Bank: they differ only what is decisive is Article 9 which states slightly from the structure of the EEC and with the utmost clarity that the tax proceeds are in fact just as complete, having at the are to be 'entered as revenue in the budgets apex a body which, like the Council of the of the Communities'. Furthermore, the Bank European Communities, is made up of does not have a budget in the sense ministers of the Member States. intended by the regulation, that is to say a measure authorizing future income and expenditure, but rather accounts designed to record its financial situation at the time at Manifestly, the upshot of all this is that the which they were drawn up. This factor, too, Bank cannot be equated with bodies like the shows that, although dominating the rules European Foundation for the Improvement

That the application mutatis mutandis must be interpreted broadly is further borne out (a) the composition of the Bank's by the nature of the tax on salaries. T o constituent bodies is laid down by an regard that tax as a manifestation of a 'royal instrument — the Statute of the prerogative' which may not be transferred Bank — which was brought into being to the Bank owing to its modest political by the Member States and hence has the stature or to say that when they introduced standing of the Treaty; that tax the Member States wished to create a new revenue item for the EEC budget is profoundly misleading. Like the similar taxes charged by the other international (b) the Bank does not appear in the organizations, the Community tax is Community budget but finances itself designed simply to put all the employees of out of its own resources, in particular the European organizations — of the using capital paid in by the Member Community on the one hand, and of the States and the proceeds of its oper- Bank, on the other — in an identical fiscal ations. situation apart from their nationality and their place of employment. T o require that the tax collected by the Bank should be paid into the Community budget means ignoring that objective and transforming the tax into Accordingly the Commission's argument to an 'external' tax, thereby causing the the effect that Article 22 of the Protocol of equality of the two bodies to be breached. 8 April 1965 merely extended to the Bank, Neither may it be said that the Bank is not its members and its officials the benefit of opposed to the rate of the tax being set by the privileges provided for therein is flawed an 'outside' body, such as the Council. As ab initio. In reality, the extension effected things stand today, in fact, that circum- by that provision has as its primary aim stance is neutral; but it would cease to be so entitlement to those benefits; hence it can be if the Bank were to lose control over the tax said that the Bank is invested with the since then any increase in the rate would power of taxation in exactly the same way increase the Community's resources but as the Community is. The same principle, manifestly not the Bank's. moreover, governs Article 13, in the first paragraph of which, in order to make sense, the term 'Communities' should invariably be replaced by the term 'Bank'. The Commission, which carries out that exercise However, the Commission does not of substitution only where it serves its overlook only the aim of the tax when it purpose, interprets the provision in the denies the Bank the right to withhold the following, absurd manner: officials and sums paid by its staff. It also overlooks the other agents of the Communities (including fact that the Protocol which gave rise to the the staff of the Bank) shall be liable to a tax tax goes back to 17 April 1957 whilst the for the benefit of the Communities Statute of the Bank, in which its resources

are listed, bears the same date as the Treaty favourable terms granted to it. If it were to of Rome, that is to say 25 March 1957. lose its status, it would also cease to have Worse still, the Commission takes no heed access to those favourable terms, which of the discriminatory treatment and losses shows that the aphorism of Chief Justice which the Bank would suffer if those sums Marshall in McCulloch v Maryland— 'the were withdrawn from it. power to tax involves the power to destroy' — continues to be fully relevant today. And this is not all. Today the Bank's involvement in the funding of a project attracts other backers because they know that the Bank acts on the basis of objective assessments and not, as often happens in the Community, because of mainly political T h e discrimination is obvious. It can be seen reasons. So, a decrease in its independence from the Community budget that the would also have adverse effects on the Council, the Commission, the Court and the Bank's work with regard to the granting of Parliament get back the proceeds of the tax loans. paid by their respective officials in the form of revenue and put them towards covering their administrative expenditure; yet that offsetting machinery does not apply to the Bank and hence it would be 'taxed' simply for the benefit of the Community. It is equally serious that by losing the proceeds of the tax the Bank's own operating costs Lastly, the arguments which the would increase. In turn that would result in Commission bases on Regulation N o a diminution in the Bank's funds — over 260/68 are extremely weak. It should be which, it should be noted, the Member stressed in that connection that not only was States have exclusive rights — and this the Council of the Communities not entitled might necessitate calling upon the Member to pronounce on the disposal of the tax States to make good the difference. collected by the Bank pursuant to the Protocol but also it was not even empowered to define the conditions and the procedures for its implementation; that power is vested in the Board of Governors, which has not exercised it yet simply because it has preferred to have uniform rules for reasons of expediency. Furthermore, there is a risk that the loss of Furthermore, the 'travaux préparatoires' of the tax might blur the Bank's image as a Regulation N o 260/68 are irrelevant, at legally and financially autonomous organ- least because the documents in which they ization and hence reduce its ability to take are reported come from one side only, that up loans and gather in capital on the inter- is to say from the secretariat of the Council national market. The reasons for this link or from Coreper. Moreover, the President are clear. The Bank's independent of Coreper might not have understood the status — which is made manifest above all exact extent to which the President of the by the fact that it is not subject to the power Bank's Board of Directors agreed to his of taxation of Brussels or the supervision of ideas: and in any event the latter had no the Court of Auditors — is the basis of the power to bind the Bank as regards a matter Bank's prestige and hence of the particularly affecting the rights of the Member States.

But that is not sufficient. As is obvious, the most, it is said, this shows that the tasks Article 12 of the regulation extends its assigned to the Bank are instrumental with effects solely to the staff of the Bank. regard to those of the Community Consequently, when it provides that the tax (Mosconi, La Banca europea degli inves- proceeds are to be entered as revenue in the timenti, Aspetti giuridici, Padua, 1976, p. budgets of the Communities, Article 9 does 18). not refer to the Bank; the relative duty is directed not to the Board of Governors but to the Community budgetary authority. Other arguments invoked refer to an assortment of different facts.

Let us examine both Council of the European Communities aspects. under a different name). Then, again, there is the fact that the Bank often acts as the agent of the Community and is therefore distinct from the Community (Mosconi, op. cit., p. 15, and Henrion, 'La Banque euro- Of the arguments put forward by learned péenne d'investissement', in Les nouvelles, writers, some rely on the Treaty and in Droit des Communautés européennes, particular on Articles 4, 129 and 180. Article Brussels, 1969, p. 968).

At same conclusion in so far as it is true that to

date the Community bodies, the Member pendent and hence a 'third party' vis-à-vis States and at least one non-member country the Community. have been at pains to avoid confusion arising between the Bank and the Community. For instance, the Commission has pointed out that the Bank's executive organs 'are responsible only to the Bank' Let us start with an incontrovertible obser- (answer to written question N o 288/73 by vation: without overestimating the M r Cousté, Official Journal 1973, C 106, p . importance of the title and the preamble (if 14); and in a message to the Federal any) of a piece of legislation for the Assembly on 11 August 1972 the Swiss purposes of identifying its most charac- Government stated that 'the agreement with teristic subject-matter, it is a fact that the the European Investment Bank, an Treaty of Rome is entitled 'Treaty estab- institution governed by public law and inde- lishing the European Economic Community* pendent of the European Communities [is] and that it refers in its preamble to the distinct as regards its subject-matter and Community again whereas it makes no institutionally from the free-trade agreement mention of the Bank. In any event, the between Switzerland and the EEC'. content of Articles 1, 2 and 3 is more

Are we profit-making or non-profit-making basis to take this to mean that the Bank is an (Conforti, 'Le imprese internazionali', in instrument of the EEC? This would appear Rivista di diritto internazionale privato e to be precisely the case; this is also borne processuale, 1970, p. 243); neither is it out by the fact that the other provisions surprising that a no less authoritative relating to the Bank (Articles 129 and 130) German academic categorized the Bank as a occur in Part Three of the Treaty, which is Glied (member) of the Community, but then entitled 'Policy of the Community'; they qualified that expression by using adjectives follow the provisions dealing with economic and nouns which were so contradictory policy and social policy and state that, in (weitgebend unabhängig, that is to say addition to the general task set out in the 'largely independent' and Zwitterstellung, aforementioned Article 3 (j), the Bank has that is to say 'ambiguity* or, better, 'hybrid') the task of contributing 'to the balanced and as to make it completely meaningless in steady development of the common market practice (Hilf, Die Organisationsstruktur der in the interest of the Community'. Europäischen Gemeinschaften, Berlin- Heidelberg-New York, 1982, p. 31 et seq.). And yet I am convinced that research not based on formal data but designed t o capture the overall design of the founding For our purposes the latter form of words fathers and sensitive to the manifold seems to be particularly eloquent.

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Community is to aim among other things to meaning that the members of the Bank are promote throughout the Community a all the Member States of the EEC and that harmonious development of economic acti- only such States may be members thereof. vities, a continuous and balanced expansion, This is borne out by two circumstances: on an increase in stability — and, by way of the one hand, there is the absence in the confirmation of what I was just saying — it Bank's Statute of provisions relating to the will be noticed that the tasks described in acquisition or loss of the capacity of Article 3 (j) and in Article 2 coincide member and theoretically capable of having completely. The 'special nature' which is so a different effect than the provisions laid often attributed to the Bank lies down in Article 237 with regard to therefore — if not solely, certainly membership of the EEC; on the other hand, primarily — in the specific nature of the there is the practice which has been means by which it is called upon to carry followed on the occasion of each out those objectives: granting loans and enlargement of the Community, namely the giving guarantees which facilitate the negotiation with the new Member State of financing of the following projects in all appropriate protocols relating to the Statute sectors of the economy: of the Bank.

OPINION OF MR MANCINI —CASE 85/86

guarantee concerned unless its decision is request of its financers — the United States unanimous. It does not seem to me to be Government acting' through excessive to infer from those rules (Article Eximbank — the ECSC High Authority had 21 (1), (2) and (6) of the Statute) that the to enter into an agreement termed the 'Act interests for which the Bank is responsible of Pledge' with the Bank for International can be identified as being general interests

It is not a difficult CECA, Milan, 1970, Volume II, p. 673 et question to answer. When it came to a seq.). choice between the idea put forward at the Conference of Messina of entrusting the promotion of investment in Europe to a Accordingly, the reasons for the provisions special fund and the proposal to pursue that laid down in the first paragraph of Article aim by setting up a genuine bank, the latter 129 of the Treaty and Article 4 of the proposal was successful for a number of Statute of the Bank are above all technical:

But even for those who do precedents already existed (the Bank for regard the Bank as being an organ of the Reconstruction and Development, for one). Community — which is certainly the stance However, once it had been decided to set which is most at odds with the argument up the European Investment Bank it was an that it is a 'third party' — the fact that the obvious, and in some ways, an obligatory authors of the Treaty conferred legal step to give it legal personality, if only to capacity on it is no barrier. The most auth- enable the new body to operate within the oritative academic writings have conceded

for some time that the organ of a legal governments of the Member States person may itself possess personality and concerning the provisional installation of financial autonomy and that that aspect of certain institutions and departments of the its status may even manifest itself outside Community (Journal Officiel 1967, L 152, the structure of which it is a part (Mortati, p. 18), from which it is completely clear that Istituzioni di diritto pubblico, Volume I, the Bank is regarded as an institution and Eighth Edition, Padua, 1969, p. 196 et seq.; not as a department. Giannini, Istituzioni di diritto amminis- trativo, Milan, 1981, p. 114 et seq.; Vedel, Droit administratif, Seventh Edition, Paris, 1980, p. 808 et seq.). But it is my second finding which clinches

exercise has already been carried out and the results are to be applied to body X : Let us deal with the matter in an orderly were we to find that that body has the manner. In my view, the fact that the Bank required characteristics but is not specified is not among the 'institutions' listed in to be an institution in the Treaty, that term Article 4 must not be overestimated. This is could not be applied to it; on the other shown by two findings. The first is that the hand it would continue to be an institution term 'institutions' is not used in the German even if it lacked one or more of those version of the Treaty, which refers to features were it to be described as such in 'Organe', whereas the Bank is referred to as the Treaties. an 'institution' in at least three rules laid down in derived legislation:

the agreement of the potential recipient, 'ancillary' (Vignocchi, Le Comunità europee: transmit the request to the other gli organi comunitari e le loro funzioni, institution'); Article 5 of the Decision of 8 Milan, 1963, p. 90). Why this should be so April 1965 of the representatives of the seems to me to be obvious: the Bank lacks

the fundamental characteristic of an organ, European Communities and associated that is to say its acts are not directly institutions' and inferred therefrom that by imputable to the organization — the transferring from one to another of those E E C — of which, according to the prop- 'Communities or institutions' an employee is osition under consideration, it should be not entitled to aggregate a severance grant regarded as being an integral part (Levi, from one with an allowance on entry into a 'Sulla competenza della Corte di giustizia service from another. comunitaria nelle controversie tra la BEI e i suoi dipendenti', in Rivista di Diritto

itself. This proposition — perhaps it is not and privileges provided therein should also brilliant but it is certainly closer than any apply to the staff of the Bank. The Court other to the legal reality — is, moreover, stated that the staff of the Bank were placed supported by the case-law of the Court. as a result of that provision 'in W h a t is more, in taking that line — albeit a . . . situation identical to that of the staff within the limits of the principle according of the institutions of the Community' and to which iudex iubet, non docet—the Court hence it must be concluded that Article 179 could not have been more explicit. 'includes the Bank as a Community institution established and with a legal personality conferred by the Treaty' (judgment of 15 June 1976, paragraphs 13 In the first place I have in mind Joined and 14). Cases 27 and 39/59, Campolongo v High Authority [1960] ECR 391) relating to the pecuniary rights of an official of the ECSC w h o left to join the Bank immediately Lastly, I would cite the judgment of 13 May following the entry into force of the Treaty 1982 in Case 16/81 Alaimo v Commission

The Commission approach. In its judgment of 15 July 1960 it argued that the Court should interpret the recognized 'the operational unity of the expression 'servants of the Communities' as

referring solely to the employees of the itself the proceeds of the tax levied on the institutions listed in Article 4 of the Treaty salaries of its staff. However, in order and of the bodies treated as such under the definitively to consolidate that finding and second paragraph of Article 1 of the Staff draw the appropriate inferences with regard Regulations (Court of Auditors, Economic to the action before the Court, it is and Social Committee). It therefore argued necessary to show that the numerous that the Staff Regulations should not apply arguments adduced by the Bank to the to staff of bodies which had legal contrary are unfounded. personality and were distinct from the Community, whether, as in the case of the Bank, they were established directly by the Treaty or, as in the case of the European Let us start with the Bank's interpretation of Centre for the Development of Vocational the Protocol on Privileges and Immunities Training, they were set up in implemen- and in particular of Articles 13 and 22

Conse- special currency and exchange quently those rights 'cannot apply to bodies which play no part in performing those arrangements, exemption from customs tasks' and which do not have 'the character duties on personal effects and cars, of a Community b o d / (paragraphs 8 and exemption from national taxes, etc.) also 9). applies to the corresponding burdens, where such are laid down, and hence to the question of being subject to the Community tax. 13. In the light of the matters considered as from point 10 above and of the conclusions rising therefrom it appears to me that there can no longer be any doubts as to the Hence the Bank's basic argument fails.

OPINION OF MR MANCINI —CASE 85/86

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14. In view of the w h o l e of the foregoing I propose that the C o u r t should u p h o l d the action b r o u g h t o n 19 M a r c h 1986 by the Commission of the E u r o p e a n

OPINION OF MR MANCINI — CASE 85/86

Communities and hence should declare void the decision adopted on 30 December 1985 by the Board of Governors of the European Investment Bank on the 'disposal of the proceeds of the income tax withheld by the Bank from salaries and pensions paid to its staff'.

Nevertheless, I would suggest that the Court should exercise the power conferred upon it by the second paragraph of Article 174 of the EEC Treaty in order to specify the effects of its judgment, in so far as the following factors should be taken into account:

(a) as witness the discussions in the textbooks and the practices to which I have referred, the questions before the Court are highly problematic. As far as its own nature is concerned, the Bank has put forward arguments which I consider can be overcome, but which, in view of their undoubted worthiness, testify to the Bank's good faith;

(b) the Commission has admitted that it did not notice the failure to pay the tax into the Community budget until the late 1970s owing to inexplicable over- sights on the part of its departments; and