Hoge Raad, 06-02-2026, ECLI:NL:HR:2026:206, 21/04628

Bij brief van 13 maart 2012 heeft de directeur van Europol belanghebbende te kennen gegeven dat het percentage van blijvende invaliditeit is bepaald op dertig, en dat het op grond van artikel 57, lid 2, letter c, van het Statuut uit te betalen bedrag is bepaald op € 170.074,39, vermeerderd met rente (hierna: de lumpsum). In de laatste paragraaf van de bijlage bij deze brief is vermeld:

“Pursuant to Article 26 of the Rules a breakdown of the settlement will be sent to you. However, I can already inform you that the lump sum calculated on the basis of Article 57(2)c totals EUR 170,074.39. This amount will be paid in accordance with the benefits provided for in Article 57 [Statuut] and are not considered as taxable income by Europol. This lump sum will thus be transferred to your account without applying any deductions. You are advised to address your inquiries concerning the tax regime applicable to these benefits under national law to the Dutch tax authorities, or any other authority you may be subject to.”

In een brief van 18 december 2012 van de directeur van Europol gericht aan de advocaat van belanghebbende is het volgende opgenomen:

“I can also confirm that this interest and the lump sum granted pursuant to Article 57 [Statuut] are not subject to the Europol tax. Indeed, these sums are neither salaries nor emoluments within the meaning of Article 10 of the Protocol on the privileges and immunities of Europol, the member of its organs, the deputy directors and employees of Europol. Pursuant to Article 3(g) of the Annex to the Decision of the Management Board of Europol of 16 November 1999 agreeing to the conditions and procedures laid down by Europol regarding taxes applicable to salaries and emoluments paid to Europol staff members for the benefit of Europol, allowances paid on account of occupational disease or accident are deducted from the taxable amount.”

De directeur van Europol heeft in een brief van 21 juni 2016 als volgt gereageerd op een aan hem gericht verzoek van belanghebbende (cursivering en vet in origineel):

“I am writing to you in relation to your letters dated 3 and 5 May 2016 by which you request Europol to confirm your interpretation of Article 57 of the Europol Staff Regulations ("ESR") [Statuut] and Articles 8 and 10 of the Protocol on the privileges and immunities of Europol, the members of its organs, the deputy directors and employees of Europol ("the Protocol"), according to which the lump sum (and interests) you received in 2012 - for the partial permanent invalidity you suffered as a result of the two accidents which occurred in 2001, in the course of or in connection with the performance of your duties as Europol staff member - would be immune from taxation from the Dutch tax authorities.

In particular, you ask Europol to confirm (i) that “the allowances paid on account of occupational disease or accident are deducted from the taxable amounts as they are not considered by Europol as income, salary, emolument, compensation or payment to reward (see Protocol)" and (II) that "the lump sum in this case and granted pursuant to Article 57 ESR Is an allowance to compensate pain, suffering, damage and loss of ability to perform work and therefore exempted from taxation by Europol (see attachment 8 ESR)".

I have examined your file and would like to inform you as follows:

Firstly, I would like to state once again that Europol Is not competent to give advice on the national tax regime(s) applicable to the lump sum you received pursuant to Article 57 ESR. Consequently, Europol can only comment on the tax regime which is applicable to this lump sum, according to the ESR, the Protocol and the Management Board Decision mentioned hereinafter.

That being said, I can confirm, in relation to your first question, that the lump sum you received, pursuant to Article 57 ESR, is not considered as "salaries or emoluments paid by Europol", within the meaning of Article 10 of the Protocol and consequently, that it is not subject to a tax for the benefit of Europol. Article 3(g) of the Annex to the Decision of the Management Board of Europol of 16 November 1999 agreeing to the conditions and procedures laid down by Europol regarding taxes applicable to salaries and emoluments paid to Europol staff members for the benefit of Europol1 ("MB decision of 16 November 1999") further indicates that the social benefits listed therein, including allowances paid on account of occupational disease or accident, are deducted from the basic taxable amount.

Turning to your second question, I can only inform you that, as stated in Article 3(g) of the MB decision of 16 November 1999, and pursuant to Article 57 ESR, the lump you received is an "allowance paid on account of occupational disease or accident”, construed as a social benefit, in order to compensate the partial permanent invalidity arising from the two accidents which occurred in 2001 in the course of or in connection with the performance of your duties.

Lastly, as regards the case law you referred to in your letter dated 5 May 2016, i.e. two cases brought before the Court of Justice of the European Union (Case 6/60, Humblet/Etat Belge, and case C-588/10, Bourges-Maunoury/Direction des services fiscaux d'Eure et Loir), I noted that they concern either Article 11 (b) of the Protocol on the Privileges and Immunities of the European Coal and Steel Community or Article 13 of the Protocol on the Privileges and Immunities of the European Communities and that the issues at stake concerned the extent to which the "salaries, wages and emoluments” paid by the Communities to their officials could be taken into consideration by national tax authorities. Contrary to these cases, and as indicated above, the lump sum you received is not considered as "salaries or emoluments paid by Europol". Moreover, the wording of Article 8, paragraph 2 of the Protocol is different from the hereabove mentioned Articles of the other Protocols insofar as it indicates that "[...] However, such salaries and emoluments may be taken into account when assessing the amount of tax payable on income from other sources”.

I trust that I have informed you adequately.

1 Which Is identical to Article 3.3. (g) of Appendix 8 to ESR, repealed by the Council Act of 19 December 2002 amending the Staff Regulations applicable to Europol employees (O.J., C.24 , 31 January 2003, p.1).”

Naar aanleiding van vragen van de Inspecteur heeft een medewerker van de budgetadministratie van Europol op 1 augustus 2016 een e-mailbericht gestuurd, met onder meer de volgende inhoud (onderstreping en vet in origineel):

“Europol can also confirm that the lump sum payment pursuant to Article 57 [Statuut] [belanghebbende] received, is not considered as “salaries or emoluments paid by Europol” within the meaning of Article 10 of the Protocol applicable to its active, and consequently, that the amount is not subject to a tax for the benefit of Europol. The amount has thus been transferred as a gross amount to [belanghebbende] and is most likely subject to some form of national tax regime(s).”