Dear Mrs X.,

On 21 March 2002, you made a complaint to the European Ombudsman against the European Commission concerning the interpretation and the applicability of Article 14 of the Protocol on Privileges and Immunities of the European Communities.

On 23 April 2002, I forwarded the complaint to the President of the European Commission. The European Commission sent its opinion on 26 July 2002. I forwarded it to you with an invitation to make observations, which you sent on 23 August 2002. Your observations were forwarded to the European Commission with a request to submit further information. On 27 November 2002, the European Commission replied to the request for further information. Its reply was forwarded to you with an invitation to make observations, which you sent on 6 January 2003.

I am writing now to let you know the results of the inquiries that have been made.

THE COMPLAINT

According to the complainant, the relevant facts are as follows:

The complainant is an official of the European Commission. She is a Spanish national living in Belgium. On 4 April 1998, she married Mr G, a retired official of the European Commission native of Luxembourg and living in Belgium. The latter died in Belgium on 13 April 1998.

On 20 July 1999, the notary public in charge of the succession of Mr G wrote to the Personnel and Administration DG of the European Commission, asking whether Article 14 of the Protocol on Privileges and Immunities of the European Communities (hereafter "PPI")(1) applied to Mr G. In a letter dated 11 August 1999, the Personnel and Administration DG replied that Article 14 of the PPI did not apply to Mr G given that he was retired at the time of his death.

On 22 November 1999, the complainant appealed to the Appointing Authority of the European Commission, under the Article 90 procedure, requesting the application of Article 14 of the PPI to her husband. In its decision of 31 March 2000, the Appointing Authority rejected the complainant's request. It confirmed that Article 14 of the PPI did not apply to the complainant's husband since he was retired at the time of his death.

On 21 March 2002, the complainant lodged a complaint with the European Ombudsman. She alleged that the European Commission wrongly interpreted Article 14 of the Protocol on Privileges and Immunities of the European Communities.

The complainant claims that the European Commission should apply Article 14 of the Protocol on Privileges and Immunities of the European Communities to her husband.

THE INQUIRY

The Commission's opinion

The opinion of the European Commission on the complaint was in summary the following:

The Commission referred to the arguments of the decision of the Appointing Authority of 31 March 2000. It stated that the aim of Article 14 of the PPI was to preserve a single domicile for tax purposes for a household when the spouse and children accompany the official who, solely by reason of the performance of his/her duties, establishes his/her residence in the territory of a Member State other than his/her country of domicile for tax purposes at the time of entering the service of the Communities. Such an aim is confirmed by the fact that Article 14 of the PPI makes specific reference to the spouse who is not separately engaged in a gainful occupation and to children dependent on and in the care of the persons referred to in this Article.

The Commission argued that the complainant's husband was a retired official of the European Commission and was therefore no longer subject to Article 14 of the PPI. Since he had chosen to live in Belgium, he could no longer claim anymore that his domicile for tax purposes was in Luxembourg.

The complainant's observations

The European Ombudsman forwarded the Commission's opinion to the complainant with an invitation to make observations. In her observations, the complainant maintained her complaint. She agreed with the Commission concerning the aim of Article 14 of the PPI, which was to preserve a single domicile for tax purposes for a household. She stated that she was precisely the official who, by reason of the performance of her duties, established her residence in the territory of a Member State (Belgium) other than her country of domicile for tax purposes (Spain) when she entered the service of the Communities.

She added that paragraph 2 of Article 14 of the PPI applied to her husband since he was retired and was therefore not engaged in any gainful occupation.

Finally, she stated that she claimed that her domicile for tax purposes was in Spain, and not in Luxembourg. In accordance with paragraph 2 of Article 14 of the PPI, the domicile for tax purposes of her husband had to be in the same country as hers, that is to say, in Spain.

Further inquiries

After careful consideration of the European Commission's opinion and the complainant's observations, it appeared that further inquiries were necessary.

The Ombudsman sent the complainant's observations to the European Commission, together with a request for further information. The Ombudsman asked the Commission to comment on the reasons why it refused to apply Article 14 of the PPI to the complainant's husband while she was an official of the Commission.

The Commission's further opinion

In its reply, the Commission confirmed its former opinion. It stated that Article 14 of the PPI did not apply to Mr G. This Article only applies to officials who establish their residence in the territory of a Member State other than their country of origin by reason of performance of their duties. The Commission further argued that provisions of Article 14 of the PPI also applies to the spouse of the officials provided that he/she also has to establish his/her residence in the territory of a Member State other than his/her country of domicile for tax purpose. Mr G chose to go and live in Belgium after his retirement and before his marriage with the complainant. He therefore was not forced into establishing his residence in the territory of a Member State other than his country of domicile for tax purposes.

The complainant's further observations

The complainant stated that the further opinion of the Commission contradicted its reply dated 31 March 2000 made to her appeal under the Article 90 procedure. In its reply, the Commission stated that the application of Article 14 of the PPI was within the scope of powers of the Member States and that the opinion of the administration was not decisive. In its further opinion, the Commission rejected the application of Article 14. She maintained her complaint.

THE DECISION

1 The allegedly wrong interpretation of Article 14 of the Protocol on Privileges and Immunities of the European Communities

1.1 The complainant alleged that the European Commission wrongly interpreted Article 14 of the Protocol on Privileges and Immunities of the European Communities.

1.2 The Commission argued that the aim of Article 14 of the PPI was to preserve a single domicile for tax purposes for a household when the spouse and children go with the official who, solely by reason of the performance of his/her duties, establishes his/her residence in the territory of a Member State other than his/her country of domicile for tax purposes at the time of entering the service of the Communities.

1.3 The Ombudsman notes that in the present case, the complainant is an official of the European Commission. By reason of the performance of her duties, she established her residence in Belgium, a country different from the one of domicile for tax purposes, which is Spain in this case, when she entered the service of the Communities. In accordance with Article 14 of the PPI, she shall be considered as having maintained her domicile in the country of domicile for tax purposes, that is to say Spain.

1.4 The Ombudsman also notes that Paragraph 2 Article 14 states that "This provision shall also apply to a spouse, to the extend that this latter is not separately engaged in a gainful occupation and to children dependent on and in the care of the persons referred to in this Article." In the present case, the complainant's husband was retired and was therefore not engaged in any gainful occupation. However, the Ombudsman also notes that the complainant's husband already lived in Belgium before his marriage. He therefore was not forced into establishing his residence in the territory of a Member State other than his country of domicile for tax purposes in order to follow his wife.

1.5 The Ombudsman therefore concludes that the Commission's interpretation of Article 14 of the PPI appears to be reasonable. In these circumstances, there appears to be no maladministration on the part of the European Commission. The Ombudsman would however like to recall that the Court of Justice is the highest authority on questions of application and interpretation of Community law.

2 The applicability of Article 14 of the PPI to the complainant's husband

2.1 The complainant claims that the European Commission should apply Article 14 of the Protocol on Privileges and Immunities of the European Communities to the succession of her husband.

2.2 The Commission argues that the complainant's husband was a retired official of the European Commission and was therefore no longer subject to Article 14. Since he had chosen to live in Belgium, he could no longer claim that his domicile for tax purposes was in Luxembourg.

2.3 The Ombudsman considers that the Commission's interpretation appears reasonable. There appears, therefore, to be no instance of maladministration on the part of the Commission. The Ombudsman would however like to recall that the Court of Justice is the highest authority on questions of application and interpretation of Community law.

3 Conclusion

On the basis of the Ombudsman's inquiries into this complaint, there appears to have been no maladministration by the European Commission. The Ombudsman therefore closes the case.

The President of the European Commission will also be informed of this decision.

Yours sincerely,

 

Jacob SÖDERMAN

---

(1) Article 14 of the Protocol on Privileges and Immunities of the European Communities reads as follow: "In the application of income tax, wealth and death duties and in the application of conventions on the avoidance of double taxation concluded between Member States of the Communities, officials and others servants of the Communities who, solely by reason of 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 their domicile in this latter country provided that it is a member of the Communities.
This provision shall also apply to a spouse, to the extent that this latter is not separately engaged in a gainful occupation and to children dependent on and in the care of the persons referred to in this Article."