Court of Justice of the European Communities (including Court of First Instance Decisions)

Provisional text

JUDGMENT OF THE COURT (Fifth Chamber)

7 September 2023 (*)

(Reference for a preliminary ruling – Development cooperation – Direct taxation – Income tax – Exemption granted to employees assigned to development aid projects financed from national budgetary resources – Difference in treatment of employees assigned to a project financed by the European Development Fund – Article 63(1) TFEU – Free movement of capital – Article 4(3) TEU – Duty of sincere cooperation – Facilitating the tasks of the European Union – Articles 208 and 210 TFEU – Development cooperation – Obligation to promote policies in the area of development cooperation – Invocability)

In Case C‑15/22,

REQUEST for a preliminary ruling under Article 267 TFEU from the Bundesfinanzhof (Federal Finance Court, Germany), made by decision of 13 July 2021, received at the Court on 6 January 2022, in the proceedings

RF

v

Finanzamt G,

THE COURT (Fifth Chamber),

composed of E. Regan (Rapporteur), President of the Chamber, D. Gratsias, M. Ilešič, I. Jarukaitis and Z. Csehi, Judges,

Advocate General: L. Medina,

Registrar: S. Beer, Administrator,

having regard to the written procedure and further to the hearing on 23 November 2022,

after considering the observations submitted on behalf of:

–        RF, by B. Ellenrieder, J. Schönfeld and C. Süß, Rechtsanwälte,

–        the German Government, by J. Möller, R. Kanitz and N. Scheffel, acting as Agents,

–        the European Commission, by C. Giolito, M. Kellerbauer, W. Roels, D. Schaffrin and V. Uher, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 9 February 2023,

gives the following

Judgment

1        This request for a preliminary ruling concerns the interpretation of Articles 45, 56 and 63 TFEU, Article 4(3) TEU, and the combined provisions of Articles 208 and 210 TFEU.

2        The request has been made in proceedings between a natural person and Finanzamt G (Tax Office G, Germany) concerning the latter’s refusal to exempt from income tax the salary that that person, who is subject to unlimited liability as regards that tax in Germany, earned in respect of an activity carried out abroad, financed by the 7th and 9th European Development Funds (EDF), even though national tax legislation provides that such income is exempt where, in essence, the activity is financed from national budgetary resources.

 Legal context

 The rules applicable to the 7th and 9th EDFs

 The Fourth ACP-EEC Convention

3        The Fourth ACP-EEC Convention, signed at Lomé on 15 December 1989 (OJ 1991 L 229, p. 3), has a Part Three, entitled ‘The Instruments of ACP-EEC Cooperation’, which incorporates a Title III, headed ‘Development Finance Cooperation’. That title includes Article 231 of the Convention, which provides:

‘For the purposes set out in the present Title, the overall amount of the Community’s financial assistance is provided for in the Financial Protocol to this Convention.’

4        Article 233(1) of the Convention states:

‘Projects or programmes may be financed by grant or by risk capital from the Fund, or by loans from the [European Investment] Bank’s [(EIB)] own resources, or jointly by two or more of these means of financing.’

5        The Financial Protocol annexed to the Fourth ACP-EEC Convention provides in Article 1(1) that for the purposes set out in Title III of Part Three of the Convention, on development finance cooperation, and for a period of five years commencing on 1 March 1990, the overall amount of the European Community’s financial assistance to be made available is to be ECU 12 000 million.

 The Internal Agreement on the financing and administration of Community aid under the Fourth ACP-EEC Convention

6        The first recital of the Internal Agreement on the financing and administration of Community aid under the Fourth ACP-EEC Convention (OJ 1991 L 229, p. 288) states:

‘Whereas the Fourth ACP-EEC Convention, signed in Lomé on 15 December 1989 (hereinafter referred to as “the Convention”), set the aggregate amount of Community aid to the ACP States for the period 1990 to 1995 at ECU 12 000 million’.

7        Article 1(1) and (2)(a) of that agreement provides:

‘1.      The Member States hereby set up a seventh European Development Fund (1990), hereinafter referred to as the “Fund”.

2. (a) The Fund shall consist of ECU 10 940 million to be contributed by the Member States as follows: [table showing the contributions]

…’

8        The first paragraph of Article 3 of that agreement is worded as follows:

‘To the amount laid down in Article 1 shall be added ECU 1 225 million in the form of loans granted by the [EIB] from its own resources under the conditions laid down by it in accordance with its Statute.’

9        Under Article 5 of that agreement:

‘With the exception of loans granted by the [EIB] from its own resources, all financial operations undertaken for the benefit of the ACP States or the countries and territories in accordance with the Convention or the Decision [concerning the countries and territories] shall be carried out under the conditions laid down in this Agreement and shall be charged to the Fund.’

10      Article 13(1) of the Internal Agreement on the financing and administration of Community aid under the Fourth ACP-EEC Convention provides:

‘The [European] Commission shall appraise projects and programmes which, pursuant to Article 233 of the Convention and the corresponding provisions of the Decision, could be financed by grants from the Fund’s resources.’

11      Under Article 15 of that internal agreement:

‘1.      The [EIB] shall undertake, on behalf of the Community, the financial execution of operations carried out with the Fund’s resources in the form of risk capital. In this context, the [EIB] shall act on behalf and at the risk of the Community. Any resulting rights, and particularly rights as creditor or owner, shall be vested in the Community.

2.      The [EIB] shall undertake the financial execution of operations carried out by means of loans from its own resources combined with interest rate subsidies from the Fund’s resources.’

 Financial Regulation 91/491/EEC

12      Article 33(1) of Financial Regulation 91/491/EEC of the Council of 29 July 1991 applicable to development finance cooperation under the Fourth ACP-EEC Convention (OJ 1991 L 266, p. 1) provides:

‘Payments shall, as a general rule, be effected through recognised financial institutions. …’

 The Cotonou Agreement

13      Article 62(1) of the Partnership agreement between the members of the African, Caribbean and Pacific Group of States of the one part, and the European Community and its Member States, of the other part, signed in Cotonou on 23 June 2000 (OJ 2000 L 317, p. 3), and approved on behalf of the Community by Council Decision 2003/159/EC of 19 December 2002 (OJ 2003 L 65, p. 27), as amended by the Agreement approved by Council Decision 2005/599/EC of 21 June 2005 (OJ 2005 L 209, p. 26), and by the Agreement approved by Council Decision 2010/648/EU of 14 May 2010 (OJ 2010 L 287, p. 1) (‘the Cotonou Agreement’), provides:

‘For the purposes set out in this Agreement, the overall amount of the Community’s financial assistance and the detailed terms and conditions are provided for in the Annexes to this Agreement.’

14      Annex I to that agreement, entitled ‘Financial Protocol’, is worded as follows:

‘1.      For the purposes set out in this Agreement and for a period of five years commencing 1 March 2000, the overall amount of the Community’s financial assistance to the ACP States shall be EUR 15 200 million.

2.      The Community's financial assistance shall comprise an amount up to EUR 13 500 million from the 9th European Development Fund (EDF).

3.      The 9th EDF shall be allocated between the instruments of cooperation as follows:

(a)      EUR 10 000 million in the form of grants shall be reserved for an envelope for support for long-term development. …

…

4.      An amount of up to EUR 1 700 million shall be provided from the [EIB] in the form of loans made from its own resources. …

…

6.      The [EIB] shall administer the loans made from its own resources, as well as the operations financed under the Investment Facility. …

…’

15      Article 1(1) of Annex II to that agreement, entitled ‘Terms and conditions of financing’, provides:

‘The terms and conditions of financing in relation to the operations of the Investment Facility (Facility), the loans from own resources of the [EIB] and special operations shall be as laid down in this Chapter. …’

16      Article 37(1) of Annex IV to that agreement, entitled ‘Payments’, provides:

‘For the purpose of effecting payments in the national currencies of the ACP States, accounts denominated in the currencies of the Members States or in euro may be opened in the ACP States by and in the name of the Commission with a national public or semi-public financial institution chosen by agreement between the ACP State and the Commission. This institution shall exercise the functions of National Paying Agent.’

 Internal Agreement on the financing and administration of Community aid under the Cotonou Agreement

17      Article 1(1) and (2) of the Internal Agreement between Representatives of the Governments of the Member States, meeting within the Council, on the Financing and Administration of Community Aid under the Financial Protocol to the Partnership Agreement between the African, Caribbean and Pacific States and the European Community and its Member States signed in Cotonou (Benin) on 23 June 2000 and the allocation of financial assistance for the Overseas Countries and Territories to which Part Four of the EC Treaty applies (OJ 2000 L 317, p. 355; ‘the Internal Agreement on the financing and administration of Community aid under the Cotonou Agreement’), provides:

‘1.      The Member States hereby set up a ninth European Development Fund (2000), hereinafter referred to as “the 9th EDF”.

2.      The 9th EDF shall consist of:

(a)      An amount of up to EUR 13 800 million contributed by the Member States as follows: [table of contributions]

…’

18      Article 5(1) of that agreement states:

‘To the amount laid down in Article 1(2) shall be added up to EUR 1 720 million in the form of loans granted by the [EIB] from its own resources. …’

 Financial regulation of 27 March 2003 applicable to the 9th European Development Fund

19      Article 28 of the Financial regulation of 27 March 2003 applicable to the 9th European Development Fund (OJ 2003 L 83, p. 1) provides:

‘In order to make the payments provided for in Article 37(1) and (4) of Annex IV to the ACP-EC Agreement or in the measures implementing the Overseas Association Decision, the accounting officer shall open accounts with financial institutions in the ACP States and the [the Overseas Countries and Territories; “the OCTs”], for payments in the national currencies of the ACP States or in the local currencies of the OCTs, and with financial institutions in the Member States, for payments in euro and other currencies. In accordance with Article 37(2) of Annex IV to the ACP-EC Agreement, deposits in accounts with financial institutions in the ACP States and the OCTs shall bear no interest and the latter shall receive no remuneration for their services. In accordance with Article 1(3) of the Internal Agreement [on the financing and administration of Community aid under the Cotonou Agreement], deposits in accounts with financial institutions in the Member States shall bear interest and such interest shall be credited to the one of the accounts provided for in that Article.’

 Directive 88/361/EEC

20      The introduction to Annex I to Council Directive 88/361/EEC of 24 June 1988 for the implementation of Article [63] of the Treaty (OJ 1988 L 178, p. 5) states:

‘In this Nomenclature, capital movements are classified according to the economic nature of the assets and liabilities they concern, denominated either in national currency or in foreign exchange.

The capital movements listed in this Nomenclature are taken to cover:

–        all the operations necessary for the purposes of capital movements: conclusion and performance of the transaction and related transfers. The transaction is generally between residents of different Member States although some capital movements are carried out by a single person for his own account (e.g. transfers of assets belonging to emigrants),

…’

21      The capital movements listed in Annex I include, under heading VIII, ‘Financial loans and credits (not included under I, VII and XI)’ and, under heading XI, ‘Personal capital movements’, including ‘Gifts and endowments’.

 German Law

 The EStG

22      Under the first sentence of Paragraph 1(1) of the Einkommensteuergesetz (Law on income tax), in the version applicable to the facts in the main proceedings (‘the EStG’), natural persons who are domiciled or have their place of habitual residence in Germany are subject to unlimited tax liability in that country.

23      Under Paragraph 2(1) of the EStG, the income from paid employment which the taxable person receives while subject to unlimited tax liability is subject to income tax.

24      Paragraph 34c(5) of the EStG provides:

‘The upper tax authorities of the Länder or the tax authorities designated by them may, with the agreement of the Federal Ministry of Finance, grant a partial or full rebate of the income tax on foreign income, or fix a lump sum where this is deemed appropriate for economic reasons or where the application of subparagraph 1 of this Paragraph proves particularly difficult.’

 The ATE

25      On 31 October 1983, the German Ministry of Finance published, in accordance with Paragraph 34c(5) of the EStG and in agreement with the upper tax authorities of the Länder, the Auslandstätigkeitserlass (Notice concerning the tax treatment of employee income for overseas work) (BStBl. 1983 I, p. 470; ‘the ATE’), which contains the following sections:

‘The income from work that the employees of an employer established on national territory … earn with respect to an activity benefiting from the scheme that is performed under an ongoing contract of employment in another State shall be exempt from income tax.

I.      Activities benefiting from the scheme

Activities benefiting from the scheme are those carried out abroad on behalf of a supplier, producer, contractor or a holder of rights for prospecting and extracting ore established on national territory, in connection with:

1.      the planning, construction, establishment, commissioning, expansion, repair, modernisation, monitoring or maintenance of factories, buildings, large machines fixed to the ground or comparable plant, as well as the placing, installation or repair of other equipment; in addition, the operation of the plant until delivery to the customer shall benefit from a tax advantage;

2.      the prospecting and processing of minerals;

3.      consultation services to foreign clients or organisations in relation to the operations referred to in points 1 and 2; or

4.      German public development aid in the framework of technical or financial cooperation.

…

II.      Term of the activity benefiting from the scheme

The activity abroad must be carried out for a continuous period of at least three months in States with which a double taxation agreement has not been concluded which also applies to income from paid employment.

…

V.      When the scheme shall not apply

This scheme shall not apply when:

1.      the salary is paid from national public funds, including the funds of Deutsche Bundesbahn [German Federal Railways] or the Deutsche Bundesbank [the German Central Bank];

2.      the activity carried out abroad is in a State with which an agreement for the avoidance of double taxation has been signed that is applicable to income from employment; if an agreement is applicable prior to its entry into force, the previous rules shall continue to apply until that entry into force, to the extent that they are more favourable to the employee …’

 Tax practice

26      According to the information provided by the German Government, the concept of ‘German public development aid in the framework of technical or financial cooperation’ employed in Title I, point 4, of the ATE is, in turn, interpreted by the tax authorities as meaning that the development aid measure must receive at least 75% of its financing from the Federal Ministry responsible for development cooperation or from a private development aid company belonging to the State.

 The dispute in the main proceedings and the question referred for a preliminary ruling

27      From 12 April 2009 to 31 October 2012, the applicant in the main proceedings was employed as a salaried project manager by a development aid company with its registered office in Germany. She worked under a contract of employment whose duration was the same as that of a development cooperation project being carried out in Africa to which she had been assigned. The project was financed by the 7th and 9th EDFs. During that period, she nevertheless maintained her place of residence and centre of interests in Germany, where she was therefore subject to unlimited income tax liability.

28      Finanzamt Z (Tax Office Z, Germany) granted an application from the employer of the applicant in the main proceedings for an exemption in relation to her salary, pursuant to the ATE, and it issued an exemption certificate as a result. Consequently, the employer did not withhold at source or pay any tax on the salary to the tax authorities. The applicant’s salary was likewise not subject to tax in a third country.

29      Following a tax audit of the company employing the applicant in the main proceedings, the competent tax service found that the development cooperation project at issue had not been financed by the Federal Government or by the Deutsche Gesellschaft für Internationale Zusammenarbeit (the German Society for International Cooperation, Germany), but by the 7th and 9th EDFs. Consequently, Tax Office G was requested to levy income tax on the applicant’s salary.

30      By decision of 13 February 2014, Tax Office G determined the amount of tax payable by the applicant in the main proceedings in respect of the 2011 and 2012 tax years.

31      Following an unsuccessful complaint against that decision, the applicant brought an action before the Finanzgericht Köln (Finance Court, Cologne, Germany), which the latter dismissed as unfounded by judgment of 22 March 2018. The applicant then brought an appeal on a point of law against that judgment before the referring court, the Bundesfinanzhof (Federal Finance Court, Germany).

32      In that regard, the referring court considers that, on the basis of national law, the appeal on a point of law is unfounded. By contrast, the ATE and the related tax practice could be contrary to the principle of sincere cooperation laid down in Article 4(3) TEU and the obligation for Member States to coordinate their development policies, pursuant to Articles 208 and 210 TFEU, read together.

33      In those circumstances, the Bundesfinanzhof (Federal Finance Court) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘Are Article 4(3) [TEU] and Article 208 in conjunction with Article 210 [TFEU] to be interpreted as precluding a national administrative practice according to which tax is not waived in cases where a development cooperation project is financed by [two EDFs], while salary that a worker earns from a current employment relationship in respect of an activity associated with German official development assistance within the framework of technical or financial cooperation that is financed to at least 75% by a Federal Ministry responsible for development cooperation or else by a state-owned private development assistance association is, in certain conditions, exempted from taxation?’

 Consideration of the question referred

 Admissibility

34      In its written observations, the German Government expressed doubts as to the admissibility of this request for a preliminary ruling on the ground that the description of the legal context thereof by the referring court is misleading in that it disregards the fact that the exemption provided for in Paragraph 34c(5) of the EStG is not in proportion to the share of the project financed by the Federal Ministry responsible for development cooperation or by a private development aid company belonging to the State, but, on the contrary, to the share that is not financed in that manner. At the hearing, the applicant in the main proceedings contested that rule for calculating the exemption on the ground that it was applicable only from 2014, or after the facts at issue.

35      In that regard, it should be observed that, according to settled case-law, questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining, the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. The Court may refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its object, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (judgment of 21 December 2021, Euro Box Promotion and Others, C‑357/19, C‑379/19, C‑547/19, C‑811/19 and C‑840/19, EU:C:2021:1034, paragraph 139).

36      In the present case, it is apparent from the request made by that court that the doubts which motivated the question which it has raised do not concern the exemption that may be granted to an employee according to whether the activity to which he or she is assigned is financed by national public resources or the EDF, but the fact that national legislation makes it possible to treat an employee differently on that basis. Consequently, it is not obvious that the interpretation of EU law that the referring court has sought bears no relation to the actual facts of the main action or its object.

37      Consequently, even if it were to be held that the intent of the German Government was to raise an objection of inadmissibility based on inaccuracies in the file as regards the applicable legal context, that objection must be rejected.

 Substance

38      By its question, the referring court asks, in essence, whether Article 4(3) TEU in conjunction with Articles 208 and 210 TFEU must be interpreted as precluding a national tax practice whereby there is no exemption from income tax for the salary earned by a worker assigned to an activity associated with public development aid where that activity is financed by an EDF, whereas that exemption is granted where at least 75% of the financing for such an activity is provided by a ministry responsible for development cooperation or by a private development aid company belonging to the Member State concerned.

39      That said, it should be observed, as a preliminary point, that although the referring court, in its question, mentions only Article 4(3) TEU in conjunction with Articles 208 and 210 TFEU, it should be noted that, in its request for a preliminary ruling, that court also refers to the various freedoms of movement. When questioned in that regard at the hearing, the applicant in the main proceedings and the Commission argued that a tax practice such as that at issue in the main proceedings falls in particular within the scope of the free movement of capital under Article 63(1) TFEU; the German Government maintained that those freedoms do not apply in a situation such as that at issue in the main proceedings.

40      In those circumstances, it is necessary to examine first of all whether Article 63(1) TFEU must be interpreted as precluding a tax practice such as that at issue in the main proceedings.

41      In that regard, it is apparent from the nomenclature of capital movements set out in Annex I to Directive 88/361, which still has the same indicative value for the purposes of defining the concept of capital movements (judgment of 16 December 2021, UBS Real Estate, C‑478/19 and C‑479/19, EU:C:2021:1015, paragraph 31), that the material scope of that freedom concerns operations relating to assets and liabilities denominated either in national currency or in foreign exchange, including loans and gifts of sums of money.

42      Given that the assistance that may be granted by the 7th or the 9th EDF includes both grants and loans, it must be found that a tax practice such as that at issue in the main proceedings is, in principle, liable to affect the free movement of capital.

43      That said, it is apparent from the wording of Article 63(1) TFEU that, in order to apply, the free movement of capital requires that there be movement between Member States or between a Member State and a third country.

44      In that respect, it should be observed that the Court did indeed hold, in paragraph 38 of the judgment of 2 March 1994, Parliament v Council (C‑316/91, EU:C:1994:76), that the expenditure necessary for the financial assistance provided for in Article 231 of the Fourth ACP-EEC Convention and in Article 1 of the Financial Protocol annexed to that convention is assumed directly by the States.

45      However, the Court, in the same paragraph, drew a distinction between the Member States’ assumption of that expenditure and the distribution of the assistance that such assumption is intended to bring about, since it stated that that latter operation was not carried out by those States, but by the 7th EDF. Furthermore, the Court pointed out, in paragraph 29 of that judgment, that since the Fourth ACP-EEC Convention had been concluded by both the European Economic Community and the Member States, they were, in the absence of derogations that had been expressly laid down, jointly liable to the ACP States for the fulfilment of every obligation arising from the commitments undertaken, including those relating to financial assistance. Consequently, as is clear from paragraphs 30 to 32 of that judgment, although the Fourth ACP-EEC Convention uses the phrase ‘the Community’s financial assistance’, that expression must be understood, in the context of that convention, as referring to the European Economic Community and its Member States considered together.

46      Consequently, the Court, in paragraphs 33 to 37 of that judgment, thus inferred that the assistance provided by the 7th EDF was distributed in order to fulfil the financial assistance obligation referred to in Article 231 of the Fourth ACP-EEC Convention, which fell on the Community and the Member States, considered together, but which the latter had voluntarily chosen to bear on their own, which was the reason why they had established the 7th EDF.

47      In the light of those factors, it must therefore be held that while the expenditure necessary for the financial assistance and, more generally, for endowing the 7th EDF with capital, is assumed directly by the Member States, the distribution of that assistance by the fund in question must itself be considered as being carried out not by those Member States, but by an entity established by means of an intergovernmental agreement and set up for the purpose of taking on, on behalf of the European Union and the Member States, obligations which they assumed collectively at the time of the ratification of a mixed international agreement.

48      It must therefore be found that the movement of capital involved in the distribution by the 7th EDF of financial assistance does not constitute a capital movement between Member States or between a Member State and a third country, but between that entity and, as a rule, a third country and that it therefore cannot by covered by the free movement of capital.

49      The same is true of the distribution of financial assistance by the 9th EDF since the provisions of the Cotonou Agreement and the Internal Agreement on the financing and administration of Community Aid under the Cotonou Agreement are, in that respect, analogous to the abovementioned provisions.

50      Moreover, even if the tax practice at issue were to fall within the scope of the free movement of capital, it should be borne in mind that, according to settled case-law, where the restrictive effects that a national measure may have are too uncertain and indirect, such effects cannot be regarded as being capable of hindering one of the freedoms of movement (see, by analogy, judgment of 27 October 2022, Instituto do Cinema e do Audiovisual, C‑411/21, EU:C:2022:836, paragraph 29). A tax practice such as that at issue in the main proceedings is not capable of affecting in a certain and direct manner the financing granted by the 7th or the 9th EDF.

51      In the light of the foregoing, it must be held that a tax practice such as that at issue in the main proceedings is not covered by the free movement of capital provided for in Article 63(1) TFEU.

52      As regards, next, Article 4(3) TEU, read in conjunction with Articles 208 and 210 TFEU, it may be noted that, as stated in essence in paragraph 46 above, the 7th and 9th EDFs are not bodies of the European Union. While Article 4(3) TEU indeed establishes a principle of sincere cooperation, the fact remains that the scope of that principle, even when read in conjunction with Articles 208 and 210 TFEU, is limited to the carrying out by the European Union and the Member States of tasks which flow from the Treaties.

53      Nevertheless, it should be borne in mind that the 7th and 9th EDFs were established by the Member States in order to implement the financial assistance obligations that they undertook collectively with the European Union in the framework of the Fourth ACP-EEC Convention and the Cotonou Agreement.

54      Given that the provisions of the Treaties are binding on the Member States, the latter may not escape their obligation to discharge their duty of sincere cooperation, inter alia for the purpose of the European Union carrying out its tasks, which include, in accordance with Article 3 TEU, the strict observance of international law, and therefore of commitments it has undertaken collectively with the Member States when ratifying mixed international agreements; they also include, under Article 21 TEU, the sustainable economic, social and environmental development of developing countries. Consequently, the relationship between the Member States, on the one side, and the 7th and 9th EDFs, on the other, must be regarded as being governed by the same principles as those which would have applied if the Member States had not chosen to establish those EDFs in order to fulfil the financial obligations which they undertook collectively with the European Union when ratifying the Fourth ACP-EEC Convention and the Cotonou Agreement, including the principle of sincere cooperation set out in Article 4(3) TEU, read, as necessary, in conjunction with Articles 208 and 210 TFEU.

55      Furthermore, that duty of sincere cooperation is of general application and does not depend on whether the EU competence concerned is exclusive or not (see, to that effect, judgment of 20 April 2010, Commission v Sweden, C‑246/07, EU:C:2010:203, paragraph 71); nor therefore, a fortiori, does it depend on that competence falling within an area of parallel competences, as is the case, in accordance with Article 4(4) TFEU, of development cooperation, in relation to which the EU’s exercise of its competence does not prevent the Member States from exercising theirs.

56      On the other hand, it should be borne in mind that individuals may rely only on provisions, including those laid down by the Treaties, that impose precise and unconditional obligations, not requiring, for their application, any further action on the part of the European Union or national authorities (see, to that effect, judgments of 10 November 1992, Hansa Fleisch Ernst Mundt, C‑156/91, EU:C:1992:423, paragraph 13, and of 20 March 2018, Garlsson Real Estate and Others, C‑537/16, EU:C:2018:193, paragraph 65).

57      As regards the principle of sincere cooperation set out in Article 4(3) TEU, that principle, as is apparent from the wording of the provision in question, entails two positive obligations for the Member States, consisting, first, in respecting, facilitating and assisting the European Union in carrying out tasks which flow from the Treaties – referred to in paragraph 54 above – and, second, in taking all the necessary measures for the fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions. There exists also a negative obligation, namely to refrain from any measure which could jeopardise the attainment of the European Union’s objectives.

58      As for the first of those positive obligations, while it obliges Member States to comply with the strategies and actions decided upon by the European Union (see, to that effect, judgment of 20 April 2010, Commission v Sweden, C‑246/07, EU:C:2010:203, paragraphs 75 and 76) and may, on that basis, require – where national rules make the application of a legal or tax benefit subject to the condition that its grant must be deemed appropriate for economic reasons – that the Member State concerned is to consider that such a condition is satisfied when the application of such a benefit conforms to the economic interests of the European Union that those strategies and actions intend to promote or defend, it nevertheless remains the case that such an obligation is too imprecise to be capable of creating rights for individuals (see, to that effect, judgment of 15 January 1986, Hurd, 44/84, EU:C:1986:2, paragraphs 47 to 49).

59      As regards the second of those positive obligations, under which the Member States must take all the necessary measures for the fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union, it is clear from the very wording of the second subparagraph of Article 4(3) TEU that that obligation does not by itself confer individual rights, but that it exists only in conjunction with a specific obligation on the part of the Member States pursuant to the Treaties or to an act of the EU institutions, such as that relating to the rules on competence.

60      However, unlike the situation in the case which gave rise to the judgment of 16 December 2004, My (C‑293/03, EU:C:2004:821, paragraphs 35, 41, 42, 45 and 47), it is not apparent from the documents before the Court that, in the present case, there is an obligation on the Member State concerned that may be read with the principle of sincere cooperation so as to have the effect of creating individual personal rights. The obligations set out in Article 208(1) and Article 210(1) TFEU are themselves too general to be capable of creating such rights.

61      It is true that those provisions – which pursue the general objectives of the European Union’s external action, referred to in Article 21 TEU, such as fostering the sustainable economic, social and environmental development of developing countries (see, to that effect, judgment of 2 September 2021, Commission v Council (Agreement with Armenia), C‑180/20, EU:C:2021:658, paragraph 49) – provide that the Member States and the European Union must cooperate and consult each other with a view to ensuring that their respective development aid policies complement and reinforce each other. However, the precise arrangements for such cooperation depend on a range of parameters which it is exclusively for the Member States and the European Union to define. Consequently, while the Member States and the European Union are able to rely on those obligations, those provisions, by contrast – in the absence of a more concrete expression of the obligations they provide for – cannot be raised by individuals as against a Member State or the European Union (see, by analogy, judgment of 21 December 2011, Air Transport Association of America and Others, C‑366/10, EU:C:2011:864, paragraphs 75 to 78).

62      In the case at hand, the decision by which the Commission, acting on behalf of the EDF, grants financial assistance cannot constitute a concrete expression of those provisions that may be such as to enable individuals to oppose the tax practice at issue in the main proceedings, since, first, the addressee of that type of decision is the development aid body and not its employees and, second, that decision does not lay down an obligation on the Member State concerned not to tax the income of employees assigned to the development aid project thus assisted.

63      Lastly, as regards the negative obligation set out in Article 4(3) TEU, it should be observed that, in order to define that obligation, the authors of the Treaty chose to employ terms implying a certain level of seriousness, namely to ‘jeopardise’ the attainment of the European Union’s objectives. That choice reflects the deliberate intent of those authors to limit the scope of that obligation to situations of a particularly serious nature. However, it cannot be considered that a tax practice such as that at issue in the main proceedings jeopardises the attainment of the European Union’s objectives since the EDFs are neither prevented nor even deterred from financing development aid actions.

64      In the light of the foregoing, the answer to the question referred for a preliminary ruling is that Article 4(3) TEU in conjunction with Articles 208 and 210 TFEU must be interpreted as not precluding a national tax practice whereby there is no exemption from income tax for the salary earned by a worker assigned to an activity associated with public development aid where that activity is financed by an EDF, whereas that exemption is granted where at least 75% of the financing for such an activity is provided by a ministry responsible for development cooperation or by a private development aid company belonging to the Member State concerned.

 Costs

65      Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring 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 (Fifth Chamber) hereby rules:

Article 4(3) TEU in conjunction with Articles 208 and 210 TFEU must be interpreted as not precluding a national tax practice whereby there is no exemption from income tax for the salary earned by a worker assigned to an activity associated with public development aid where that activity is financed by a European Development Fund, whereas that exemption is granted where at least 75% of the financing for such an activity is provided by a ministry responsible for development cooperation or by a private development aid company belonging to the Member State concerned.

[Signatures]

*      Language of the case: German.

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