JUDGMENT OF THE COURT (Grand Chamber)

12 September 2017 (*)

(Article 273 TFEU — Dispute between Member States submitted to the Court under a special
agreement between the parties — Taxation — Bilateral convention for the avoidance of
double taxation — Taxation of interest from financial instruments — Definition of ‘debt-claims
with participation in profits’)

In Case C-648/15,

APPLICATION pursuant to Article 273 TFEU, lodged on 3 December 2015,

Republic of Austria, represented by C. Pesendorfer, F. Koppensteiner and H. Jirousek, acting as

Agents,

applicant,

Federal Republic of Germany, represented by T. Henze and J. Möller, acting as Agents,

defendant,

THE COURT (Grand Chamber),

composed of K. Lenaerts, President, A. Tizzano, Vice-President, R. Silva de Lapuerta, T. von

Danwitz and J.L. da Cruz Vilaça, Presidents of Chambers, J. Malenovský, E. Levits, J.-C. Bonichot
(Rapporteur), A. Arabadjiev, C. Toader, C.G. Fernlund, C. Vajda, S. Rodin, F. Biltgen and K.
Jürimäe, Judges,
Advocate General: P. Mengozzi,

Registrar: K. Malacek, Administrator,

having regard to the written procedure and further to the hearing on 6 December 2016,

after hearing the Opinion of the Advocate General at the sitting on 27 April 2017,

gives the following

Judgment

1 By its application, the Republic of Austria asks the Court to rule on the dispute which has
arisen between it and the Federal Republic of Germany concerning the interpretation of Article
11(2) of the Abkommen zwischen der Republik Österreich und der Bundesrepublik
Deutschland zur Vermeidung der Doppelbesteuerung auf dem Gebiet der Steuern vom
Einkommen und vom Vermögen (Convention between the Republic of Austria and the Federal
Republic of Germany for the avoidance of double taxation with respect to taxes on income and
capital) of 24 August 2000 (BGBl. III, 182/2002, ‘the Austro-German Convention’) concerning
the taxation of the interest from financial instruments (Genussscheine) issued by a company
with its seat in the Federal Republic of Germany and held by a company with its seat in the
Republic of Austria.

Legal context

The Vienna Convention

2 Article 31(1) of the Vienna Convention on the Law of Treaties of 23 May 1969 (United
Nations Treaty Series, vol. 1155, p. 331) (‘the Vienna Convention’) reads as follows:
‘A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be
given to the terms of the treaty in their context and in the light of its object and purpose.’

The Austro-German Convention

3 Article 3(2) of the Austro-German Convention provides:

‘As regards the application of the [Austro-German Convention] at any time by a Contracting
State, any term or phrase not defined therein shall, unless the context requires a different
interpretation, have the meaning that it has at that time under the law of that State for the
purposes of the taxes to which the Convention applies, the meaning of that term or phrase
according to the tax law of that State having priority over its meaning according to other fields
of law of that State.’

4 Under Article 11(1) of the Austro-German Convention, income in the form of interest is
taxed in the State of residence or establishment of the beneficial owner. This treatment differs
from that provided for in Article 10 of the convention for income from dividends, which are, in
principle, taxed in the State of their source.

5 Article 11(2) of the Austro-German Convention provides:

‘Income from rights or debt-claims with participation in profits, including income received by a
silent partner from his participation as a silent partner or income from profit-participating
loans and profit-sharing bonds, may, however, also be taxed in the State Party in which it
arises, in accordance with the laws of that State.’

6 In order to avoid double taxation of such income, the two States Parties opted for the
‘offsetting’ method, as defined in Article 23 of the Austro-German Convention, according to
which the State of residence or establishment of the beneficiary of the interest is obliged to
offset the amount of tax already levied by the source State against the amount of income tax
to be levied on that beneficiary.

7 Article 25(1) of the Austro-German Convention provides that any person who considers
himself to have been prejudiced by taxation contrary to that convention may initiate a mutual
agreement procedure between the competent authorities of the States Parties.
8 Under Article 25(5) of the Austro-German Convention:

‘In the case of difficulties or doubts concerning the interpretation or the application of this
convention, for which no solution can be found during a mutual agreement procedure
between the competent authorities arranged in accordance with the preceding paragraphs of
this article within a period of three years from the initiation of that procedure, the States
Parties are obliged, at the request of the person referred to in paragraph 1, to submit the
dispute to the Court of Justice [of the European Union] under an arbitration procedure
pursuant to Article [273 TFEU].’

9 Article 30 of the Austro-German Convention provides that the protocol thereto forms an
integral part of that convention.

10 Point 16 of that protocol provides that the provisions of the Austro-German Convention,
which are worded in accordance with the relevant provisions of the Model Tax Convention on
Income and on Capital drawn up by the Organisation for Economic Cooperation and
Development (OECD), generally have the same meaning as those in the commentaries on the
articles of that model convention. The same point also states that those commentaries are a
means of interpreting the Austro-German Convention within the meaning of the Vienna
Convention.

Background to the dispute

11 Between 1996 and 1998, Bank Austria AG, a company with its seat in the Republic of
Austria with unlimited tax liability in that Member State, acquired certain certificates from
Westdeutsche Landesbank Girozentrale Düsseldorf und Münster, subsequently Landesbank
NRW, whose seat is located in the Federal Republic of Germany.

12 The Republic of Austria claims, without contradiction by the Federal Republic of

Germany, that the terms of issue of those certificates may be summarised as follows:

– the certificates confer entitlement to an annual payment at a fixed percentage of their

nominal value;
– if the annual payment is likely to give rise to an accounting loss, its amount is reduced
accordingly;

– however, the certificates confer entitlement, during the period of their existence, to
payment of arrears over the course of subsequent years, provided that that adjustment does
not give rise to an accounting loss;

– the payment of interest and the payment of arrears have priority over allocation to
reserves and payments to guarantors;

– the amount of capital made available to the issuer in return for the certificates is
reimbursed at the nominal value of those certificates;

– however, if the balance sheet shows a loss, the amount of the claim for reimbursement is
reduced accordingly. In that case, too, the difference as compared with the nominal value of
the certificate is made up over the course of subsequent years, provided that this does not
entail a loss;

– the certificates confer no right to participation in the proceeds from the winding up of
the issuing company; and

– the issuing company has a right to cancel if the certificates no longer give rise to tax
deductibility.

13 While it is undisputed that the income from the certificates at issue is interest within the
meaning of Article 11 of the Austro-German Convention, and not dividends within the meaning
of Article 10 thereof, the Republic of Austria and the Federal Republic of Germany disagree on
whether such interest falls under Article 11(1) or Article 11(2) of that convention. More
precisely, the Republic of Austria claims that the certificates at issue are not participation in
profits within the meaning of Article 11(2) of that convention, whereas the Federal Republic of
Germany takes the contrary view.

14 Those divergent views as to the legal characterisation of the interest received by Bank
Austria led the two States to claim the exclusive right to tax that interest, which gave rise to
double taxation for that company for the financial years between 2003 and 2009.
15 Pursuant to Article 25(1) of the Austro-German Convention, Bank Austria lodged a
request to initiate the mutual agreement procedure with the Austrian authorities. That
procedure was initiated by the Republic of Austria but ended in an acknowledgement of failure
at the end of 2011.

16 Bank Austria therefore asked the Republic of Austria to bring the dispute before the
Court pursuant to Article 25(5) of the Austro-German Convention.

Forms of order sought by the parties

17 The Republic of Austria claims that the Court should:

– rule that the certificates at issue must not be regarded as debt-claims with participation
in profits within the meaning of Article 11(2) of the Austro-German Convention and that,
consequently, the Republic of Austria, as the State of residence of the beneficial owner, has
the exclusive right to tax the interest therefrom;

– hold that the Federal Republic of Germany must therefore refrain from taxing that
interest and reimburse the tax already levied on that basis;

– order the Federal Republic of Germany to pay the costs.

18 The Federal Republic of Germany contends that the Court should:

– hold that the certificates at issue must be regarded as debt-claims with participation in
profits within the meaning of Article 11(2) of the Austro-German Convention and that,
consequently, the Federal Republic of Germany, as the source State of the income, has the
exclusive right to tax the interest therefrom;

– hold that the Republic of Austria must therefore avoid double taxation of that interest
and reimburse the tax already levied on that basis;
– order the Republic of Austria to pay the costs.

The application for settlement of the dispute

Jurisdiction of the Court

19 The application has been brought before the Court pursuant to Article 273 TFEU, under
which the Court may rule on ‘any dispute between Member States which relates to the subject
matter of the Treaties if the dispute is submitted to it under a special agreement between the
parties’.

20 That provision makes the jurisdiction of the Court, subject, on the one hand, to the
existence of a dispute between Member States, which is beyond doubt in the present case.

21 The Republic of Austria and the Federal Republic of Germany both claim the exclusive
right to tax income relating to financial years in which those two States were members of the
European Union. Those concurrent claims led, in so far as concerns the taxable person, to
double taxation contrary to the aims of the Austro-German Convention, by which the States
Parties to that convention sought specifically to avoid double taxation. Since the mutual
agreement procedure provided for by that convention was unsuccessful, the existence of a
dispute between Member States within the meaning of Article 273 TFEU must be regarded as
established.

22 The Court’s jurisdiction is, on the other hand, conditional upon the dispute being related
to the subject matter of the Treaties.

23 As the Advocate General stated in point 43 of his Opinion, it follows from a comparison
of the various language versions of Article 273 TFEU that the phrase ‘related to’ must be
understood as a link rather than a requirement that the subject matter be the same.

24 That interpretation is supported by a comparison with the faculty, laid down in Article
259 TFEU, for a Member State to bring an action for failure to fulfil obligations against another
Member State when it considers that the latter has failed to fulfil one of its obligations under
the Treaties themselves.

25 The condition laid down in Article 273 TFEU that the dispute should be related to the
subject matter of the treaties is therefore satisfied when it is established that the dispute
brought before the Court has an objectively identifiable link with the subject matter of the
Treaties.

26 That is manifestly so in the present case, in the light of the beneficial effect of the
mitigation of double taxation on the functioning of the internal market that the European
Union seeks to establish in accordance with Article 3(3) TEU and Article 26 TFEU. As the
European Commission observed, in essence, in its communication to the European Parliament,
the Council and the European Economic and Social Committee of 11 November 2011, entitled
‘Double Taxation in the Single Market’ (COM(2011) 712 final), the purpose and effect of the
conclusion between two Member States of a convention avoiding double taxation is to
eliminate or mitigate certain consequences resulting from the uncoordinated exercise of their
powers of taxation, which is, by its nature, capable of restricting, discouraging or rendering less
attractive the exercise of the freedoms of movement provided for in the TFEU.

27 Lastly, the Court has jurisdiction to rule on an application under Article 273 TFEU only if it
is submitted to the Court under a special agreement between the parties.

28 It is true that this application was not lodged pursuant to an arbitration clause
specifically adopted with a view to resolving the dispute, but pursuant to a general term of the
Austro-German Convention, namely, Article 25(5) thereof, before that dispute arose, by which
the States Parties undertook to bring before the Court all difficulties which could arise
concerning the interpretation or the application of that convention not resolved by amicable
agreement.

29 However, in the light of the objective pursued by Article 273 TFEU, which consists in
affording the Member States a means of resolving those of their disputes which relate to the
subject matter of the Treaties within the framework of the EU judicature, there is no reason
for the parties not to acknowledge, before a dispute arises, an agreement on the referral to
the Court of any potential dispute in predefined circumstances in a provision such as Article
25(5) of the Austro-German Convention (see, to that effect, judgment of 27 November 2012,
Pringle, C-370/12, EU:C:2012:756, paragraph 172).
30 The Court has therefore jurisdiction to rule on this dispute.

Substance

31 The dispute turns on the question whether the concept of ‘debt-claims with participation
in profits’ referred to in Article 11(2) of the Austro-German Convention must be interpreted as
including certificates such as those at issue in the present case.

32 The Court notes in that regard that such certificates may be regarded as a particular class
of debt. According to their terms of issue, those certificates are remunerated by interest at a
fixed percentage of their nominal value. Nevertheless, the particularity of the certificates is, in
essence, that the payment of interest is limited, or even suspended, if, as a result of such
payment, the issuing company would end its financial year with a loss, with an adjustment
being made subsequently to include the arrears when that company returns to profitability,
provided that such an adjustment does not cause any loss.

33 In order to settle the dispute, it must therefore be ascertained whether the form of
remuneration of those certificates may be regarded as characteristic of ‘participation in profits’
within the meaning of Article 11(2) of the Austro-German Convention, a concept not defined
by that convention.

34 In that regard, the Federal Republic of Germany relies on the interpretation of the
concept under its national law, in particular on a judgment of the Bundesfinanzhof (Federal
Finance Court, Germany) of 26 August 2010, according to which the remuneration from the
certificates at issue is to be regarded as participation in profits.

35 Indeed, Article 3(2) of the Austro-German Convention sets out a rule of interpretation
according to which a term or phrase not defined by that convention must be given the
meaning it has under the tax law of the State applying it.

36 Nevertheless, such a rule of interpretation by a single State at a given point in time is not
to be regarded as a rule intended to arbitrate between divergences of interpretation between
the two States Parties.
37 A construction to the contrary would, furthermore, deprive of all practical effect the
provisions of Article 25(5) of that convention, whose mutual agreement procedure and clause
conferring jurisdiction on the Court would have scarcely any meaning if the States Parties had
intended that convention to be interpreted only by reference to national laws alone, even
when, as in the present case, those laws have diametrically opposed implications.

38 The concept of ‘debt-claims with participation in profits’, for the purpose of the Austro-
German Convention must, therefore, be interpreted according to the methods proper to
international law.

39 In that regard, it should be borne in mind that it follows from the provisions of the
Vienna Convention, to which both the Republic of Austria and the Federal Republic of
Germany are parties, that a treaty must be interpreted in good faith in accordance with the
ordinary meaning to be given to its terms in their context and in the light of its object and
purpose, taking into account any relevant rules of international law applicable in the relations
between the parties to that treaty (see, to that effect, judgment of 25 February 2010, Brita,
C-386/08, EU:C:2010:91, paragraph 43).

40 As regards, first of all, the ordinary meaning to be given to the terms ‘participation in
profits’, both everyday language and the most commonly accepted accounting conventions
refer to an acceptance which implies, in principle, the object of receiving a share in the positive
income of the annual operations of an undertaking. That is generally the case of a shareholder
but also, in particular, of an employee whose employment contract provides for a bonus
representing a proportion of the profits realised by the employer.

41 Furthermore, the phrase ‘participation in profits’ is normally associated with the

inherent variability and unpredictability of the annual income of any high-risk economic
activity. Thus, participation in the profits of a financial year generally implies the right to
receive an amount that is uncertain at the beginning of the financial year, that is liable to vary
from one year to another and is indeed capable of being zero.

42 The phrase ‘debt-claims with participation in profits’ therefore refers to financial

products the remuneration of which varies, at least partially, according to the debtor’s annual
profits.
43 Such an interpretation is borne out by a contextual and purposive analysis of the
provisions in which ‘debt-claims with participation in profits’ appears, which is the concept at
the heart of this dispute.

44 Next, as regards context, it should be noted that that concept appears in Article 11(2) of
the Austro-German Convention before a list intended to illustrate its meaning, which includes
three types of financial instrument the common characteristic of which is, as the Advocate
General noted in points 94 to 97 of his Opinion, that their remuneration is supposed to vary
according to the annual profits of the issuer.

45 The same applies to ‘profit-sharing bonds’, which are generally defined as obligations
conferring entitlement to a portion of the issuer’s profits, in addition to the fixed interest
which they provide.

46 Similarly, ‘profit-participating loans’ are generally characterised by a fixed or variable

base interest rate, supplemented by interest linked to the amount of the debtor’s profits.

47 As to a ‘silent partner’, regardless of the form taken, he is by definition intended to share

in the profits of the undertaking in which he holds a stake, as the Republic of Austria indeed
claims, without being contradicted.

48 Lastly, as regards the purpose of the provisions of which the phrase ‘debt-claims with
participation in profits’ forms part, it should be noted that Article 11(2) of the Austro-German
Convention appears as a derogation from the principle, expressed in Article 11(1) of that
convention, of allocating between the States Parties their powers of taxation on the basis that
interest is, in principle, taxed only in the State of establishment or residence of its beneficiary.
That derogation enables interest earned on a debt-claim with participation in profits to be
taxed ‘also’ in the State of its source. It is therefore for the State of the establishment or
residence of the beneficiary of that interest to offset the double taxation by deducting the tax
already levied at the source from the other tax owed by the holder of the debt-claim.

49 Having regard to the general scheme and purpose of the Austro-German Convention,
which consists in avoiding, as far as possible, legal double taxation in cross-border situations
between the two States Parties, the criterion allowing for derogation from the agreed
allocation of powers of taxation, namely there being participation in profits, must be given a
strict interpretation, such as that set out in paragraphs 40 to 42 above.
50 A broad interpretation of the phrase ‘participation in profits’ referred to in Article 11(2)
of the Austro-German Convention would be liable to limit the scope of Article 11(1) thereof,
which, by a strict division of powers of taxation of interest, is intended to avoid any double
taxation, whereas an application of Article 11(2) implies double taxation, the detrimental
effects of which on the proper functioning of the internal market are mitigated only by the
offsetting rule laid down in Article 23(1)(b) and (2)(b) of that convention.

51 In the present case, it is common ground that the certificates at issue are remunerated
annually on the basis of a fixed percentage of their nominal value, which is itself fixed, both
values being predetermined at the time of issue.

52 It is true that the remuneration of those certificates has, furthermore, the particular
feature that it is reduced or suspended when the financial year of the issuing company would
end with a loss caused by that remuneration, with an adjustment being made subsequently in
the course of the following beneficial financial years, provided that the payment of the arrears
does not give rise to loss, those arrears thus being added to the payment of the interest
otherwise due on the basis of the previous financial years.

53 Nevertheless, that particularity implies only that the annual payment of interest is
affected by the presence of sufficient net profit for that financial year, and not that the
certificates at issue confer entitlement, in addition to annual interest, to a share in those
profits.

54 Having regard to all of the foregoing considerations, the concept of ‘debt-claims with
participation in profits’ referred to in Article 11(2) of the Austro-German Convention must be
interpreted as excluding certificates such as those at issue in the present case.

55 As regards the reciprocal claims of the Republic of Austria and the Federal Republic of
Germany that the other should refrain from exercising its powers of taxation over the income
of the certificates at issue, the reply given by the Court to the issue of the interpretation of
Article 11(2) of the Austro-German Convention is sufficient in that regard.

56 As regards the reciprocal claims of the Republic of Austria and the Federal Republic of
Germany for an order that the taxes wrongfully levied be reimbursed, there are, at all events,
no grounds for upholding them.
57 There is no information available to the Court that would allow it to adopt a position in
that regard, in particular as far as concerns any possible interference with existing procedures
potentially pending before the courts of either of the two States.

58 It is therefore for the Republic of Austria and the Federal Republic of Germany to draw
the proper inferences from the present judgment, by cooperating to that end in good faith.

Costs

59 Under Article 138(1) of the Rules of Procedure of the Court, the unsuccessful party is to
be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

60 Since the Republic of Austria has applied for costs to be awarded against the Federal
Republic of Germany, and the latter has been unsuccessful, it must be ordered to pay the
costs.

On those grounds, the Court (Grand Chamber) hereby rules:

1. The concept of ‘debt-claims with participation in profits’ referred to in Article 11(2) of the
Abkommen zwischen der Republik Österreich und der Bundesrepublik Deutschland zur
Vermeidung der Doppelbesteuerung auf dem Gebiet der Steuern vom Einkommen und vom
Vermögen (Convention between the Republic of Austria and the Federal Republic of Germany
for the avoidance of double taxation with respect to taxes on income and capital) of 24 August
2000 must be interpreted as excluding certificates such as those at issue in the present case.

2. The Federal Republic of Germany is ordered to pay the costs.

OPINION OF ADVOCATE GENERAL

MENGOZZI

delivered on 27 April 2017 (1)

Case C-648/15

Republic of Austria

Federal Republic of Germany

(Article 273 TFEU — Dispute between Member States submitted to the Court under a special
agreement between the parties — Jurisdiction — Taxation — Interpretation of a convention
for the avoidance of double taxation — Taxation of particular certificates or financial
instruments (Genussscheine) — Interest from debt-claims — Concept of ‘income from rights or
debt-claims with participation in profits’ — Profit-sharing bonds — Profit-participating loans —
Silent partner)

I – Introduction

1. The present case is the first in which a Member State, here the Republic of Austria, has
brought before the Court, pursuant to Article 273 TFEU, a dispute, between it and another
Member State, namely the Federal Republic of Germany, ‘which relates to the subject matter
of the Treaties’ and ‘is submitted to it under a special agreement between the parties’.

2. That dispute relates to the interpretation and application of Article 11 of the Convention
of 24 August 2000 between the Republic of Austria and the Federal Republic of Germany for
the avoidance of double taxation with respect to taxes on income and capital (2) (‘the German-
Austrian Convention’), for the purposes of the taxation of interest from registered certificates
known as ‘Genussscheine’ acquired by UniCredit Bank Austria AG (‘Bank Austria’), a company
established in Austria, from a German bank, the Westdeutsche Landesbank Girozentrale
Düsseldorf und Münster, now Landesbank NRW (‘WestLB’).

3. In essence, while the Republic of Austria considers that, as the Member State of
residence of the beneficial owner of the interest paid, it alone is entitled to tax that income,
pursuant to Article 11(1) of the German-Austrian Convention, the Federal Republic of Germany
also claims the right to tax that income, as the Member State in which that interest originates,
because the interest must be classified as ‘income from rights or debt-claims with participation
in profits’ within the meaning of Article 11(2) of the German-Austrian Convention. That conflict
of interpretation led to double taxation of the interest received by Bank Austria, which gave
rise to the dispute before the Court.

4. In addition to the opportunity to resolve this technical dispute, the present case more
broadly offers the Court the opportunity to define the limits of its jurisdiction under Article 273
TFEU and, in view of the nature of the dispute before it, the procedural and interpretative
rules and substantive law applicable in this context.

II – Legal context

A – EU law and international law

5. Under Article 273 TFEU, the Court is to have jurisdiction in any dispute between
Member States which relates to the subject matter of the Treaties if the dispute is submitted
to it under a special agreement between the parties.

6. Article 31(1) of the Vienna Convention on the Law of Treaties of 23 May 1969 (3)
provides that a treaty is to be interpreted in good faith in accordance with the ordinary
meaning to be given to the terms of the treaty in their context and in the light of its object and
purpose.

7. Article 31(3)(c) of the Vienna Convention on the Law of Treaties provides that it is
necessary to take into account, together with the context, any relevant rules of international
law applicable in the relations between the parties.
8. Article 11(1) of the Model Tax Convention on Income and on Capital drawn up by the
Organisation for Economic Cooperation and Development (‘the OECD model convention’), in
its 1998 version, provides that interest arising in a Contracting State and paid to a resident of
the other Contracting State may be taxed in that other State.

9. Article 11(2) of the OECD model convention, however, provides that ‘interest may also
be taxed in the Contracting State in which it arises and according to the laws of that State, but
if the beneficial owner of the interest is a resident of the other Contracting State, the tax so
charged shall not exceed 10 per cent of the gross amount of the interest’.

10. Article 11(3) of the OECD model convention contains a definition of the concept of
‘interest’. That term means income from debt-claims of every kind, whether or not secured by
mortgage and whether or not carrying a right to participate in the debtor’s profits, and in
particular, income from government securities and income from bonds or debentures,
including premiums and prizes attaching to such securities, bonds or debentures.

B – The German-Austrian Convention

11. Under Article 11(1) of the German-Austrian Convention, income in the form of ‘interest’
is taxed in the State of residence of its beneficial owner.

12. By way of derogation from Article 11(1) of the German-Austrian Convention, Article
11(2) states that income from rights or debt-claims with participation in profits, including
income received by a silent partner from his participation as a silent partner or income from
profit-participating loans and profit-sharing bonds, may, however, also be taxed in the State
Party in which it arises, in accordance with the laws of that State.

13. Article 11(3) of the German-Austrian Convention defines the concept of ‘interest’ as
meaning the income from debt-claims of every kind, whether or not secured by mortgage and
whether or not carrying a right to participate in the debtor’s profits.

14. In order to avoid double taxation of such income, the two Contracting States opted for
the ‘offsetting’ method, as defined in Article 23 of the German-Austrian Convention. The State
of residence or establishment of the beneficiary of the interest is thus obliged to offset against
the amount of income tax to be levied on the beneficiary the tax already levied by the source
State.

15. Article 25 of the German-Austrian Convention sets out a procedure for the settlement of
disputes between the competent authorities of the States Parties, at the initiative of a person
who considers that he has been affected by taxation which is not in accordance with that
convention. Under Article 25(5) of the German-Austrian Convention, in the case of difficulties
or doubts concerning the interpretation or the application of that convention, for which no
solution can be found during the mutual agreement procedure between the competent
authorities arranged in accordance with the preceding paragraphs of Article 25 within a period
of three years from the opening of that procedure, the States Parties are obliged, at the
request of the person who initiated the procedure, to submit the dispute to the Court under
an arbitration procedure pursuant to Article 239 EC (now Article 273 TFEU).

16. Article 30 of the German-Austrian Convention provides that the protocol thereto forms
an integral part of that convention.

17. Paragraph 16 of that protocol provides that the provisions of the German-Austrian
Convention, which are drafted in line with the relevant provisions of the OECD model
convention, generally have the same meaning as those in the commentaries on the articles of
the OECD model convention. (4) That paragraph of the protocol states that the preceding
sentence is not applicable to the following matters:

– any comments made by the two Contracting States concerning the OECD model
convention or the commentaries on the articles thereof;

– any contrary interpretation in the protocol;

– any contrary interpretation by one of the two Contracting States in a published

declaration which was lodged with the competent authority of the other Contracting State
before the entry into force of the German-Austrian Convention;

– any contrary interpretation agreed on by the competent authorities of the two

Contracting States after the entry into force of the German-Austrian Convention.
18. Paragraph 16 of the protocol also states that the commentaries on the articles of the
OECD model convention are a means of interpreting the German-Austrian Convention for the
purposes of the Vienna Convention on the Law of Treaties.

19. The German-Austrian Convention entered into force on 1 January 2003.

III – The facts giving rise to the main proceedings

20. Between 1996 and 1998, Bank Austria, a company having its registered office in Austria
and with unlimited tax liability in that Member State, acquired registered certificates known as
‘Genussscheine’ from WestLB, a German banking institution.

21. The Republic of Austria claims, without contradiction by the Federal Republic of
Germany, that the characteristics of those certificates, which flow from their terms of issue,
may be summarised as follows:

– the certificates confer entitlement to an annual payment corresponding to a fixed

percentage of their nominal value;

– where the annual payment is likely to give rise to an accounting loss, its amount is
reduced accordingly;

– however, the certificates confer entitlement, during the period of their existence, to
payment of arrears over the course of subsequent years, provided that that adjustment does
not give rise to an accounting loss;

– the payment of interest and the payment of arrears have priority over allocation to
reserves and payments to guarantors;

– the amount of capital made available to the issuer in return for the certificates is
reimbursed at the nominal value of those certificates;
– however, where the balance sheet shows a loss, the amount of the claim for
reimbursement is reduced accordingly. In that case, too, the difference as compared with the
nominal value of the certificate is made up over the course of subsequent years, provided that
this does not entail a loss;

– the certificates do not confer a right to participation in the proceeds from the winding up
of the issuing company; and

– the issuer has a right to cancellation where the certificates do not give rise to tax
deductibility.

22. Under the terms of issue, the amount of the annual payment, according to the three
categories of certificates in question, designated T1, T2 and T3, and depending on the years in
question, was a percentage of the nominal value of the certificate ranging from 4.36% to
7.36%. (5)

23. It is common ground that the issuer has made profits over the entire period of the
certificates’ existence and, therefore, that the interest has always been paid at the fixed
annual rate provided for in the terms of issue.

24. While it is also undisputed that the income from those certificates is ‘interest’ within the
meaning of Article 11 of the German-Austrian Convention (and not dividends within the
meaning of Article 10 of that convention), the Republic of Austria and the Federal Republic of
Germany disagree on whether that income falls under the first or second paragraph of Article
11. More precisely, the Republic of Austria claims that the remuneration from the certificates
at issue is not ‘participation in the profits’ of the issuer within the meaning of Article 11(2),
whereas the Federal Republic of Germany takes the contrary view.

25. Those divergent views led those two Member States to claim the right to tax the interest
received by Bank Austria, which gave rise to double taxation of that company for the financial
years from 2003 to 2009.

26. Pursuant to Article 25 of the German-Austrian Convention, Bank Austria submitted a

request to open the mutual agreement procedure to the Austrian authorities. That procedure
was initiated by the Republic of Austria but ended in an acknowledgement of failure at the
close of 2011.
27. Bank Austria therefore asked the Republic of Austria to bring the dispute before the
Court pursuant to Article 25(5) of the German-Austrian Convention.

IV – Forms of order sought and procedure before the Court

28. The Republic of Austria claims that the Court should:

– hold that income from the certificates at issue in this dispute is not to be characterised as
‘debt-claims with participation in profits’ within the meaning of Article 11(2) of the German-
Austrian Convention and that, consequently, the Republic of Austria, as the State of residence
of the beneficial owner, has the exclusive right to tax the income from the certificates acquired
by Bank Austria;

– order the Federal Republic of Germany to refrain from taxing the income from the
certificates at issue and to reimburse the taxes already levied on that income; and

– order the Federal Republic of Germany to pay the costs.

29. The Federal Republic of Germany contends that the Court should:

– hold that income from the certificates at issue in this dispute must be characterised as
‘debt-claims with participation in profits’ within the meaning of Article 11(2) of the German-
Austrian Convention and that, consequently, the Federal Republic of Germany, as the source
State of that income, has the exclusive right to tax the income from those certificates;

– order that the Republic of Austria must therefore avoid double taxation of the income
from the certificates at issue in this dispute by offsetting it, and reimburse the taxes already
levied on that income; and

– order the Republic of Austria to pay the costs.

30. The parties to the dispute presented oral argument at the hearing on 9 December 2016.

V – Analysis

31. Prior to any substantive analysis, I consider it important to examine whether the Court
has jurisdiction to give a ruling in the dispute before it. Even though it is common ground
between the parties that the dispute fulfils the conditions for the application of Article 273
TFEU, it is for the Court to verify whether that is indeed the case. Moreover, the principle that
a court must have the power to determine its own jurisdiction is inherent in its judicial and
arbitral functions. (6) Furthermore, the assessment of whether the Court has jurisdiction to
give a ruling on the present dispute must, in my view, also address the question of whether, as
each of the parties to the dispute claims in its second head of claim, the Court has the power
to issue injunctions to the parties.

A – The jurisdiction of the Court

32. As I mentioned in my introductory remarks, a dispute has never before been brought
before the Court pursuant to Article 273 TFEU.

33. That article lists three conditions for triggering the Court’s jurisdiction.

34. First, the dispute brought before the Court must exclusively be between ‘Member
States’, a condition which is undoubtedly fulfilled in the present case.

35. Secondly, the dispute must be brought before the Court ‘under a special agreement’.

36. In its judgment of 27 November 2012, Pringle (C-370/12, EU:C:2012:756, paragraph

172), the Court acknowledged that, despite the reference to the concept of a ‘special
agreement’, there was no reason, given the objective pursued by Article 273 TFEU, why such
agreement should not be given in advance, with reference to a whole class of predefined
disputes, by means of an arbitration clause or special agreement. In so far as the Member
States concerned wish to confer jurisdiction on the Court by means of an arbitration clause or
special agreement, it is irrelevant whether their consent was given before or after the dispute
arose.
37. In the present case, the Court is seised pursuant to the arbitration clause contained in
Article 25(5) of the German-Austrian Convention. That clause states, in particular, that ‘in the
case of difficulties or doubts concerning the interpretation or the application of the [German-
Austrian Convention], for which no solution can be found during [the] mutual agreement
procedure … the States Parties are obliged … to submit the dispute to the Court of Justice
under an arbitration procedure pursuant to Article [273 TFEU]’.

38. In so far as, first, it is common ground that the formal conditions provided for in Article
25 of the German-Austrian Convention, which must be fulfilled before mandatory referral to
the Court, have been fulfilled and, secondly, the difficulties or doubts concerning the
interpretation or the application of that convention have not been amicably resolved, the
second condition laid down in Article 273 TFEU is also fulfilled.

39. Thirdly, Article 273 TFEU requires that the ‘dispute’ brought before the Court ‘relates to
the subject matter of the Treaties’. (7)

40. That substantive condition, despite its generic formulation, must, in my view, be defined
fairly precisely. Were that not the case, the Member States choosing to have recourse to the
method for settling their disputes provided for in Article 273 TFEU could be exposed to a
double risk.

41. First, there is the risk that the area concerning which the Member States agree to settle
their dispute pursuant to Article 273 TFEU may, in reality, be among the matters for which the
Court has exclusive jurisdiction under other TFEU provisions. Such disputes would be ones
relating to the interpretation or application of the Treaties within the meaning of Article 344
TFEU. (8) Thus it is clear that, as the Republic of Austria acknowledges, the Member States
cannot have recourse to Article 273 TFEU to settle disputes which fall under the procedure
provided for in Article 259 TFEU, which authorises a Member State to refer a matter to the
Court where it considers that another Member State has failed to fulfil one of its obligations
under the Treaties. If such a dispute were nevertheless brought before the Court on the basis
of Article 273 TFEU, it would have to decline jurisdiction to resolve the dispute on the ground
that the legal basis for the action brought before it was erroneous.

42. It follows that, Article 273 TFEU permits, on the basis of a special agreement, the
extension of the Court’s jurisdiction to disputes which relate not to EU law, in which case they
would fall under its exclusive competence provided for in Article 344 TFEU, but to international
law, provided that the area of international law in question relates to the subject matter of the
Treaties.

43. That latter clarification leads me, secondly, to examine the second risk to which the
Member States may be exposed, namely that of conferring jurisdiction on the Court pursuant
to Article 273 TFEU where the criterion [in the French language version] of connexité with the
subject matter of the Treaties is not fulfilled. It is true that the criterion of ‘connexité’ must not
be interpreted too strictly. On the one hand, many language versions of Article 273 TFEU
merely refer to the concept of a ‘link’ or a ‘connection’ to the subject matter of the Treaties,
(9) which suggests a relationship which could be more extended and less proximal to that
subject matter than the term ‘connexité’ would suggest. (10) On the other hand, since EU law
is by nature evolving, the assessment of the link between a dispute and the subject matter of
the Treaties must, in my view, be sufficiently generous in order for Article 273 TFEU to be
effective.

44. Nonetheless, Article 273 TFEU cannot be used as a means of settling inter-State disputes
which are entirely removed or excessively distant from the subject matter of the Treaties. It is
for that reason that the decision by the two Member States to use that provision in order to
settle a dispute relating to their respective territorial, maritime or island sovereignty would, in
my view, come up against greater difficulties when it comes to fulfilling the condition of
connexité with the subject matter of the Treaties.

45. To avoid those pitfalls, there must therefore be a sufficient and objectively identifiable
link between the dispute, within the meaning of Article 273 TFEU, and the action or objectives
of the European Union.

46. In my view, that is the situation in the present case.

47. While it does not fall within the subject matter of the Treaties, a dispute relating to the
interpretation of a bilateral tax convention for the avoidance of double taxation, such as that
which gave rise to the present case, has a clear link to the subject matter of the Treaties.

48. In that regard, it must be recalled that the Court has consistently held that, in the
absence of any unifying or harmonising Community measures, (11) Member States retain the
power to define, by treaty or unilaterally, the criteria for allocating their powers of taxation,
particularly with a view to eliminating double taxation, and that it is for the Member States to
take the measures necessary to prevent situations of double taxation by applying, in particular,
the criteria followed in international tax practice. (12) EU law, in its current state and in a
situation such as that at issue in the main proceedings, does not lay down any general criteria
for the attribution of areas of competence between the Member States in relation to the
elimination of double taxation within the European Union. (13)

49. That led the Court to the procedural conclusion that it does not have jurisdiction, in the
context of a reference for a preliminary ruling provided for in Article 267 TFEU, to rule on a
possible infringement, by a contracting Member State, of provisions of bilateral conventions
entered into by the Member States designed to eliminate or to mitigate the negative effects of
the coexistence of national tax regimes. (14)

50. The Court also found that it cannot examine the relationship between a national
measure and the provisions of a bilateral double taxation convention, since that question does
not fall within the scope of the interpretation of EU law. (15)

51. Even though it does not fall within the subject matter of the Treaties, the fact remains
that a dispute relating to the interpretation of the provisions of a convention for the avoidance
of double taxation between Member States is linked to the objective of the establishment of
the internal market, as provided for in Article 3(3) TEU, in that the elimination or avoidance of
double taxation by convention will ultimately assist the realisation of the internal market (16)
and the exercise of the freedoms of movement.

52. That finding remains valid, in my view, even after the repeal by the Treaty of Lisbon of
the second indent of Article 293 EC, which called on the Member States, so far as is necessary,
to enter into negotiations with each other with a view to securing for the benefit of their
nationals the abolition of double taxation within the Community.

53. Just as that article was not intended to lay down a legal rule directly applicable as such,
(17) its repeal does not affect the finding that the conclusion between two Member States of a
convention avoiding double taxation promotes the establishment of the internal market, since
the purpose of such an instrument is to eliminate or mitigate negative effects resulting from
the exercise by those Member States of taxation powers in an uncoordinated manner which
restricts, discourages or renders less attractive the exercise of the freedoms of movement
provided for in the FEU Treaty.

54. In my view, it follows that the proceedings have been legitimately brought before the
Court on the basis of Article 273 TFEU.
55. It remains to be assessed, as I stated in point 31 of this Opinion, whether, in the context
of Article 273 TFEU, the Court has the authority to issue injunctions to the two States Parties,
as they call on it to do in the second head of their respective claims, that is to say, as regards
the Federal Republic of Germany, to refrain from taxing the interest at issue and to reimburse
the excess taxes levied, as the Republic of Austria requests, or, as regards the latter party, to
avoid double taxation of that interest and to reimburse the excess taxes levied, as the Federal
Republic of Germany requests.

56. In my view, there is no doubt whatsoever that, in choosing to make the settlement of
disputes linked to the interpretation and the application of the German-Austrian Convention
subject to the jurisdiction of the Court pursuant to Article 273 TFEU, the two States Parties also
consented to the Court applying, in the absence of any other provisions in that convention, the
entirety of the provisions of EU law which govern its powers and its procedures.

57. However, except in the case of interim measures ordered by the Court when dealing
with an application for interim measures pursuant to Article 279 TFEU, which the Court has
acknowledged can include appropriate injunctions issued to the other party, (18) including
where, without prejudice to or neutralising the judgment to be subsequently handed down
concerning the substance of the case, those measures are ancillary to an action seeking a
finding that a Member State has failed to fulfil its obligations under the Treaties, (19) no
provision of the Treaties confers on the Court the jurisdiction to compel a Member State to act
or to refrain from acting in a particular way.

58. As regards, more particularly, cases in which the Court is called upon to find that there
has been a failure by a Member State to fulfil its obligations under the Treaties (Articles 258
and 259 TFEU) or to annul an act of an EU institution, body, office or agency (Article 263 TFEU),
Articles 260 and 266 TFEU provide respectively that the Member States and the EU
institutions, bodies, offices or agencies in question are to be required to take the necessary
measures to comply with the judgment delivered. That finding then leads the Courts of the
European Union to state that, in the exercise of their jurisdiction, the provisions of the Treaties
do not permit them to issue injunctions to EU institutions or to Member States. (20)

59. It is true that Article 273 TFEU is not worded in terms similar to those of Articles 260 and
266 TFEU. However, in my view, it cannot be inferred, by a contrario reasoning and given the
silence of Article 273 TFEU, that the High Contracting Parties intended to confer a power to
issue injunctions on the Court in the context of settling disputes covered by Article 273 TFEU.
The Court, like all EU institutions, is subject to the principle of conferral, as recalled, in essence,
in Article 13(2) TEU. The power which would be conferred on the Court to compel a Member
State to act in a particular way must, in my view, follow unambiguously from the provisions of
the Treaties. However, that is not the case.

60. I certainly do not exclude that, exceptionally, pursuant to Article 273 TFEU, the Member
States which are party to the special agreement under which the matter was referred to the
Court may, by common consent, confer a power of injunction on that Court. Nevertheless, in
the present case, it does not follow from any provision of the German-Austrian Convention
that this is the case or that the jurisdiction of the Court, which, I would recall, extends not only
to the interpretation but also to ‘the application’ of that convention, might include such a
power of injunction.

61. In those circumstances, I consider that it is not within the Court’s jurisdiction to compel
one or other Member State party to the German-Austrian Convention to act in a particular
way. Those Member States must, in the spirit of their special agreement and the principle of
good faith, accept all of the consequences of the judgment to be delivered and take the
necessary measures to comply with it.

B – Substance

62. As stated in the introduction to the present Opinion, the dispute between the Member
States party to the German-Austrian Convention relates to the interpretation and the scope of
the phrase ‘income from … debt-claims with participation in [the debtor’s] profits’ in Article
11(2) of that convention. If the income which gave rise to the dispute falls within the category
of ‘interest’ covered by Article 11(2) of the German-Austrian Convention, it would ‘also’ be
taxable in the source Member State, namely in Germany. Otherwise, that income would fall
within the generic category of ‘interest’ covered in Article 11(1) of that convention and would
be taxable in the Member State of residence of its beneficiary, namely in Austria.

63. Quite logically, the Republic of Austria consequently advocates what, for the sake of
convenience, may be termed a ‘strict’ interpretation of the phrase ‘income from … debt-claims
with participation in [the debtor’s] profits’ in Article 11(2) of the German-Austrian Convention,
whereas the Federal Republic of Germany advocates a ‘broad’ interpretation of that phrase.

64. Before examining in more detail the arguments put forward by the two Member States
which are parties to the dispute in support of their respective views, it is important to recall
that it is common ground between those Member States that the certificates at issue
(Genussscheine), which gave rise to the case brought before the Court, are comparable to
obligations and not to shares in the capital of the issuing company. The present case does not
therefore relate to a conflict regarding the legal classification of the remuneration from the
financial instruments giving rise to the dispute, in which that remuneration is treated by one of
the States Parties to the German-Austrian Convention as ‘dividends’ while the other State
considers it to be ‘interest’.

65. It is thus common ground that the income generated by the certificates giving rise to the
dispute must be classified not as ‘dividends’ within the meaning of Article 10 of the German-
Austrian Convention, but as ‘interest’ within the meaning of Article 11(3) of that convention,
since it represents remuneration from a debt-claim, that is to say the provision of funds
subject to reimbursement. (21)

66. In my view, the consequences which flow from that finding have already shed some light
on one of the stumbling blocks of the dispute, that is to say the question of whether it is
necessary, as the Republic of Austria claims, mainly to opt for an autonomous interpretation of
the phrase ‘income from … debt-claims with participation in [the debtor’s] profits’ or, on the
contrary, to define that expression first and foremost by reference to the national law of the
Member State in which the income arises, as the Federal Republic of Germany appears to
claim.

67. Article 11(3) of the German-Austrian Convention defines ‘interest’, in particular, as

income from debt-claims of any kind, whether or not carrying a right to participate in the
debtor’s profits.

68. That definition is analogous to that in Article 11(3) of the OECD model convention. In the
two languages in which it was drafted, English and French, the OECD model convention defines
‘interest’ as ‘income from debt-claims of every kind, whether or not … carrying a right to
participate in the debtor’s profits’ (in French ‘les revenus de créances de toute nature,
assorties ou non … d’une clause de participation aux bénéfices du débiteur’).

69. The definition given in Article 11(3) of the OECD model convention is useful for
interpreting the one which appears in Article 11(3) of the German-Austrian Convention. When
applying paragraph 16 of the protocol to that convention, the provisions of the German-
Austrian Convention, which are worded in accordance with the relevant provisions of the
OECD model convention, have, in the absence of any indication to the contrary on the part of
the States Parties to the German-Austrian Convention, the same meaning as that contained in
the commentaries on the articles of the OECD model convention. (22)
70. Paragraph 21 of those commentaries states that the definition of interest provided for in
the first sentence of Article 11(3) of the OECD model convention is exhaustive and that it
seemed preferable not to add to the text a secondary formulation referring to national
legislation. The reasons given are: (a) that that definition covers practically all the kinds of
income which are regarded as interest in the various domestic laws; (b) that the formula
employed offers greater legal certainty and ensures that the conventions would be unaffected
by future changes to domestic laws; and (c) that in the OECD model convention references to
domestic law should be avoided as far as possible.

71. In my view, that circumstance is a factor supporting the Republic of Austria’s argument
that the concept of ‘interest’ used in Article 11 of the German-Austrian Convention, and more
particularly the expression ‘income from … debt-claims with participation in [the debtor’s]
profits’ in Article 11(2) and (3) thereof, must be given an autonomous interpretation, separate
from any interpretation adopted by the national legislation of one or other of the States
Parties to that convention.

72. That finding is supported by the nature of the German-Austrian Convention, which, as
the two Member States party to the dispute acknowledge, is an international treaty, the rules
for the interpretation of which consequently follow the principles codified in the Vienna
Convention on the Law of Treaties. However, in that regard, it is important to recall that Article
31(1) of the Vienna Convention on the Law of Treaties specifies that a treaty is to be
interpreted in good faith in accordance with the ordinary meaning to be given to its terms in
their context and in the light of its object and purpose, (23) whereas Article 31(3)(c) states that
a treaty is to be interpreted taking into account any relevant rules of international law
applicable in the relations between the parties to that treaty. (24)

73. In that context, irrespective of what may be the general value, in international law, of
the commentaries on the articles of the OECD model convention, it is important to note that,
under the last sentence of paragraph 16 of the protocol to the German-Austrian Convention,
the States Parties to that convention have agreed to consider those commentaries as being
one of the rules of interpretation of the German-Austrian Convention within the meaning of
the Vienna Convention on the Law of Treaties.

74. Those considerations seem to me to support the argument that the concept of
‘interest’, including the phrase ‘income from … debt-claims with participation in [the debtor’s]
profits’, must be interpreted autonomously in the context of the rules of interpretation
particular to international treaties and independently of the national law of the Member States
party to the dispute. (25)
75. The reference in Article 11(2) of the German-Austrian Convention to ‘the laws’ of the
source State, in the present case the laws of the Federal Republic of Germany, cannot, in my
view, alter that finding. Moreover, the Federal Republic of Germany has not argued that such
scope should be conferred on that reference to the national law of the source State of the
interest covered by Article 11(2) of that Convention.

76. Article 11(2) of the German-Austrian Convention states, in essence, that ‘income from
rights or debt-claims with participation in profits … may … be taxed in the State Party in which
it arises, in accordance with the laws of that State’ (26) The purpose of Article 11(2) of the
German-Austrian Convention is not to provide a definition of the term ‘interest’ or the phrase
‘income from … debt-claims with participation in [the debtor’s] profits’, but to establish how
the powers of taxation are to be allocated between the two Member States party to that
convention.

77. Thus, the expression ‘in accordance with the laws’ of the source State of the income
refers merely to the choice (‘may … be taxed’) of that State to exercise its power of taxation,
which consists in whether or not to tax the income in question. The source State could
perfectly well refrain from levying such a tax on all or part of the income falling within the
scope of Article 11(2) of the German-Austrian Convention.

78. Similarly, the fact that the States Parties to the German-Austrian Convention chose to
allocate their powers of taxation in the context of Article 11(1) and (2) of that convention in a
different manner to the allocation arising from Article 11(1) and (2) of the OECD model
convention has no impact on the definition of ‘interest’, which is common to those two
instruments.

79. Nor is the need to interpret the phrase ‘income from … debt-claims with participation in
[the debtor’s] profits’ independently of the laws of the States Parties to the German-Austrian
Convention invalidated by the argument of the Federal Republic of Germany based on Article
3(2) of that Convention.

80. Article 3(2) of the German-Austrian Convention provides that, ‘as regards the
application of the Convention at any time by a Contracting State, any term or phrase not
defined therein shall, unless the context requires a different interpretation, have the meaning
that it has at that time under the law of that State for the purposes of the taxes to which the
Convention applies’. (27)
81. However, as I emphasised above, by referring to the OECD model convention and the
commentaries on the articles thereof, commentaries which bring to the fore precisely the
need to provide a definition of the term ‘interest’ which is exhaustive and independent of
national law, the German-Austrian Convention sought, at least as regards the definition of that
term, including the expression ‘income from … debt-claims with participation in [the debtor’s]
profits’ in Article 11(2) and (3) of that convention, not to rely on the meaning conferred upon
that term by the national laws of the source State of that income.

82. In those circumstances, interpreting Article 3(2) and Article 11(2) of the German-
Austrian Convention as meaning that the definition and scope of the term ‘interest’ fall under
the national law of the States Parties to that convention would, in my view, conflict with the
shared intention of those parties, which is expressed in paragraph 16 of the protocol by
reference to the OECD model convention and its commentaries, to separate that concept,
including ‘income from … debt-claims with participation in [the debtor’s] profits’, from any
meaning conferred upon it by the national laws of those States. (28)

83. Finally, that conclusion is, by contrary inference, supported by the definition of
‘dividends’ set out in Article 10(3) of the German-Austrian Convention, which, like Article 10(3)
of the OECD model convention, refers to the laws of the source State, that is to say to the laws
of the State of residence of the issuing company.

84. That said, it is now appropriate to examine the heart of the dispute before the Court,
relating to the interpretation of the phrase ‘income from … debt-claims with participation in
[the debtor’s] profits’ in Article 11(2) of the German-Austrian Convention.

85. That expression, like the equivalent expression in Article 11(3) of the OECD model
convention, is not defined in the German-Austrian Convention.

86. In that regard, the two Member States agree that, for the interest to fall within the
scope of Article 11(2) of the German-Austrian Convention, the yield from the debt-claims must
depend upon profits.

87. However, the Republic of Austria and the Federal Republic of Germany disagree as
regards the level of dependency.
88. While it states that participation in profits occurs where a person participates in the
positive results of another person’s operations, the Federal Republic of Germany considers
that it is sufficient, for the criterion of dependency to be satisfied, that payment of the agreed
interest be dependent on whether the debtor has sufficient liquid funds or makes sufficient
profits. In the case giving rise to the dispute, the fact that only interest at a rate fixed in
relation to the nominal value of the certificates is paid does not mean, according to that
Member State, that that interest is not dependent on the debtor’s profits since, according to
the terms of issue of the certificates at issue, the agreed remuneration is dependent on the
result of the issuer’s operations or the existence of a profit realised by the debtor sufficient to
allow the payment of that interest, since that interest is not paid in the case of an accounting
loss.

89. The Republic of Austria claims, on the contrary, that an additional and decisive condition
must be fulfilled, namely that the dependency must, at the very least, take the form of the
payment of interest additional to the fixed interest provided for by the terms of issue of the
certificate and based on the debtor’s profits. In the case giving rise to the dispute, the agreed
remuneration at a fixed rate of interest is linked only to possible losses, since the payment of
interest is suspended in the case of an accounting loss or reduced accordingly where it is itself
likely to cause an accounting loss and is accompanied by an entitlement to payment of arrears
in subsequent years. In the Republic of Austria’s view, the situation which arises is therefore
one characterised not by ‘participation in profits’ within the meaning of Article 11(2) of the
German-Austrian Convention, but, at most, by ‘participation in losses’, which falls within
Article 11(1) of that Convention.

90. As stated above, Article 31(1) of the Vienna Convention on the Law of Treaties provides
that a treaty is to be interpreted in good faith in accordance with the ordinary meaning to be
given to the terms of the treaty in their context and in the light of its object and purpose.

91. In the context of the assessment of the ordinary meaning of the phrase ‘income from …
debt-claims with participation in profits’, it is important first of all to note that that phrase was
selected over ones which, in my view, would have had broader scope, such as ‘income from …
debt-claims which is dependent on profits’ or ‘income from … debt-claims with participation in
results’.

92. As claimed by the Republic of Austria, whose definitions — which accord with the
ordinary meaning of the phrase at issue — were set out in its application and were not
disputed in that regard by the Federal Republic of Germany, the right to ‘participation in
profits’ refers to the concept of an entitlement to receive a part or a share of the undertaking’s
profits. (29)
93. That concept is, in my view, supported by two of the examples of financial instruments
listed in Article 11(2) of the German-Austrian Convention.

94. As the Republic of Austria claimed, in essence, it is for that reason that profit-sharing
bonds (‘Gewinnobligationen’) are generally defined as obligations conferring entitlement to a
portion of the issuer’s profits, in addition to the fixed interest which they provide. (30)

95. Similarly, ‘profit-participating loans’ (in German ‘partiarischen Darlehen’) are often
characterised by a basic interest rate, which may be fixed or variable, supplemented by
interest linked to the amount of the debtor’s profits. (31)

96. However, it is more difficult to derive any particular guidance from the reference to the
participation of the ‘silent partner’ (in German, ‘stiller Gesellschafter’), since that legal concept
seems to be particular to the national law of the two Member States party to the German-
Austrian Convention. Moreover, it appears that, at least as regards German law, a distinction is
drawn within that legal concept itself between a typical silent partner (‘typischerstiller
Gesellschafter’) and an atypical silent partner (‘atypischerstiller Gesellschafter’), the main
differences between them appearing to be linked to the degree of association, or the extent of
the commonality of interests, between the person providing the capital (the silent partner)
and the entity receiving that capital, the applicable classification depending on all the
circumstances in each particular case. (32) Broadly speaking, even though a typical silent
partner retains a status comparable to that of a creditor, he participates in the debtor’s profits,
or even in the latter’s profits and losses, by sharing a certain number of the risks with that
party. An atypical silent partner may, for his part, be accorded decision-making powers within
the debtor undertaking and also participate, as a general rule, in hidden reserves and
unrealised gains, placing him on the same footing as a co-entrepreneur. (33)

97. Article 11(2) of the German-Austrian Convention restricts itself to referring generically
to silent partners, without reference to whether they are typical or atypical. There does not
appear, however, to be any doubt that a silent partner, irrespective of whether he is typical or
atypical, participates, at the very least, in the debtor’s profits, as the Republic of Austria claims
without contradiction from the Federal Republic of Germany.

98. Finally, the assessment of the phrase ‘income from … debt-claims with participation in
profits’, contained in Article 11(2) of the German-Austrian Convention, in also taking into
consideration the financial instruments which are intended to illustrate it, favours, in my view,
the argument that the participation in profits takes the form of remuneration from the funds
made available to the debtor which varies, if only partially, according to the amount of the
latter’s profits.

99. That strict interpretation of the disputed phrase, which also determines the scope of
Article 11(2) of the German-Austrian Convention, seems to me to be consistent with the broad
logic of Article 11 of that convention and the allocation of powers of taxation agreed between
the two States Parties as regards the category of ‘interest’.

100. Article 11(1) of the German-Austrian Convention establishes the principle that ‘interest’ is
taxed in the State of residence of its beneficial owner, whereas Article 11(2) permits only, as a
derogation (‘however’), taxation by the source State of ‘income from … debt-claims with
participation in profits’. That allocation of powers of taxation between the two Member States
for that category of income is distinct in two respects from that arising from Article 11(1) and
(2) of the OECD model convention. First, the OECD model convention confers on both the State
of residence and the source State the right to tax the entire category of income classed as
‘interest’ within the meaning of the model convention, whereas under Article 11(2) of the
German-Austrian Convention the right of the source State is limited to the interest
representing participation in the debtor’s profits. Secondly, while the OECD model convention
caps the source State’s right to tax at 10% of the gross amount of the interest, no ceiling is
specified in Article 11(2) of the German-Austrian Convention.

101. A broad or extensive interpretation of the phrase ‘participation in profits’ contained in

Article 11(2) of the German-Austrian Convention would allow the source State to levy, with no
ceiling specified in that convention, a tax on the interest paid to a taxable person established in
the other State Party, without the rate of that interest even having to vary, if only partially,
according to the debtor’s profits. Such an interpretation would therefore permit an
encroachment on the power of the State of residence of the beneficial owner of the interest,
as that power is provided for in Article 11(1) of the German-Austrian Convention. Moreover, in
so far as the tax rate which the source State may levy is not capped by Article 11 of the
German-Austrian Convention but depends solely on the national law of that State, the
Member State of residence could find itself, to a large extent, incapable of eliminating double
taxation by application of the offsetting method provided for in Article 23(2)(b) of the German-
Austrian Convention.

102. In my view, it follows that, in the light of its ordinary meaning, the context in which the
phrase ‘income from … debt-claims with participation in profits’ is used and the objective
pursued by Article 11 of the German-Austrian Convention, that phrase must be interpreted
strictly and be restricted to situations in which the remuneration from the debt-claim varies, at
least partially, according to the amount of the debtor’s profits.
103. In the case giving rise to the dispute, it is common ground that, under the terms of issue,
T1, T2 and T3 certificates confer an entitlement to the payment of annual interest at a fixed
rate calculated on the basis of the nominal value of those certificates and predetermined at
the time of purchase of those certificates. Nowhere do the terms of issue provide that the
interest rate is to be supplemented, at the very least, by a variable element representing a part
or a share of the profits made by the debtor. Thus, whether the debtor makes 1 million or 10
million euros in profit, the interest rate paid in remuneration of the obligation purchased is
that determined by the terms of issue, based solely on the nominal value of the certificates.

104. As the Republic of Austria acknowledges, it is true that the interest rate may, under the
terms of issue, be reduced to 0% where the debtor incurs losses.

105. However, where no losses are incurred in subsequent years, the creditor is entitled to
payment of arrears during those years; the difference as compared with the nominal value of
the certificates — and not, even in part, an amount linked to the profits subsequently made by
the debtor — is made up during those years. It is therefore a clause for carrying over the
interest in the event of losses rather than a clause for participation in the profits of the debtor.

106. It certainly cannot be denied that, as regards the terms of issue, the purchaser of those
certificates undertakes to bear some degree of risk, namely the risk of the issuer incurring
losses in one or more financial years. Nevertheless, such asymmetry in the remuneration of
the certificates, that is to say an interest rate that is likely to vary in the event of losses, but
which is independent of the amount of the profits made by the debtor, cannot be regarded, in
my view, as remuneration which, in whole or in part, provides a creditor with a part or a share
of the debtor’s profits. In those circumstances, this does not constitute a case of ‘income from
… debt-claims with participation in [the debtor’s] profits’, within the meaning of Article 11(2)
of the German-Austrian Convention.

107. That conclusion cannot be altered by the fact, on which the Federal Republic of Germany
relies heavily in its written submissions, that the Bundesfinanzhof (Federal Finance Court,
Germany) arrived at a contrary conclusion in a judgment of 26 August 2010. (34) In the context
of the application of Article 273 TFEU, the Court cannot be bound by assessments carried out
by a court of one of the Member States party to the dispute, at the risk of depriving of all
practical effectiveness the arbitration clause under which those States chose to entrust the
Court with the settlement of that dispute. In the present case, since that clause concerns the
interpretation and application of the German-Austrian Convention, the Court is, of course,
entirely at liberty to interpret that convention in the light of the principles of interpretation
flowing from the Vienna Convention on the Law of Treaties.
108. In the light of all the foregoing considerations, I consider that the form of order sought by
the Republic of Austria must be granted. I therefore propose that the Court hold that the
phrase ‘income from rights or debt-claims with participation in profits’, contained in Article
11(2) of the German-Austrian Convention, must be interpreted as meaning that it covers
income which provides a creditor with a part or a share of the debtor’s profits, to the exclusion
of income which varies only in the event of losses incurred by that debtor.

VI – Costs

109. Under Article 137 of the Rules of Procedure, a decision as to costs is to be given in the
final judgment or in the order which closes the proceedings. Moreover, Article 138 of those
rules provides that the unsuccessful party is to be ordered to pay the costs, if they have been
applied for in the successful party’s pleadings.

110. Since the Federal Republic of Germany should, in my view, be unsuccessful and the
Republic of Austria has applied for costs, I propose that the Court uphold the Republic of
Austria’s application.

VII – Conclusion

111. In the light of all those considerations, I propose that the Court should:

– hold that the phrase ‘income from rights or debt-claims with participation in profits’,
contained in Article 11(2) of the Convention of 24 August 2000 between the Republic of
Austria and the Federal Republic of Germany for the avoidance of double taxation with respect
to taxes on income and capital must be interpreted as meaning that it covers income which
provides a creditor with a part or a share of the debtor’s profits, to the exclusion of income
which varies only in the event of losses incurred by that debtor;

– order the Federal Republic of Germany to pay the costs.

1 Original language: French.

2 BGBl. III, 182/2002 (Austria) and BGBl. 2002 II, p. 735 (Germany), dBStBl I 2002, 584
(Germany),

3 United Nations Treaty Series, Vol. 1155, p. 331.

4 The commentaries on the articles of the OECD model convention are drafted by the OECD
Committee on Fiscal Affairs, which is made up of experts from the governments of the member
countries of the OECD. Those commentaries are frequently used as a source of interpretation
for bilateral tax conventions which are based on the OECD model convention. The Court has
also referred to them, including in the context of references for a preliminary ruling, in
particular where those commentaries are part of the legal context of the dispute in the main
proceedings. See judgment of 19 January 2006, Bouanich (C-265/04, EU:C:2006:51,
paragraphs 51, 52 and 56). See also judgment of 23 February 2006, van Hilten-van der Heijden
(C-513/03, EU:C:2006:131, paragraph 48).

5 More precisely, the amount of the annual payment for T1 certificates was 4.36% for 1996,
5.36% for 1997 and 1998, and 7.36% for other years. For T2 certificates, that amount is 5.60%
for all years and, for T3 certificates, likewise for all years, 5.65% of the nominal value of the
certificate.

6 See in particular, to that effect, International Criminal Tribunal for the former Yugoslavia,
Prosecutor v. Tadić, No IT-94-1-AR72, decision of the Appeals Chamber, 2 October 1995,
paragraph 18, and Arbitral Tribunal (arbitration concerning territorial and maritime borders),
Republic of Croatia v. Republic of Slovenia, decision of 30 June 2016, paragraphs 148 to 157.

7 See, also, judgment of 27 November 2012, Pringle (C-370/12, EU:C:2012:756, paragraph

173).

8 See, in that regard, judgment of 30 May 2006, Commission v Ireland (C-459/03,

EU:C:2006:345, paragraphs 123 and 127).

9 See, in particular, the language versions in Spanish (‘relacionada con el objeto de los
Tratados’), English (‘which relates to the subject matter of the Treaties’), Portuguese
(‘relacionado com o objeto dos Tratados’), Romanian (‘în legătură cu obiectul tratatelor’),
Slovenian (‘ki se nanašajo na predmet Pogodb’) and Finnish (‘joka on yhteydessä
perussopimusten kohteeseen’).

10 Although it is the same term that is used, in French, both in Article 273 TFEU and, for
example, in Article 54(1) of the Rules of Procedure of the Court, which relates to the joining of
cases having a causal connexité, the English language version of that latter article, unlike the
English language version of Article 273 TFEU, uses the term ‘connection’.

11 It should be noted that Council Directive 2003/49/EC of 3 June 2003 on a common

system of taxation applicable to interest and royalty payments made between associated
companies of different Member States (OJ 2003 L 157, p. 49) is not applicable to the dispute in
the main proceedings, since Bank Austria and WestLB are not associated companies.
Moreover, the observations of the two Member States which are parties to the dispute do not
refer to that directive and it will therefore not be examined in the present Opinion.

12 See, in particular, judgments of 16 July 2009, Damseaux (C-128/08, EU:C:2009:471,

paragraph 30 and the case-law cited); of 8 December 2011, Banco Bilbao Vizcaya Argentaria
(C-157/10, EU:C:2011:813, paragraph 31); and order of 19 September 2012, Levy and Sebbag
(C-540/11, not published, EU:C:2012:581, paragraph 19).

13 See, by analogy, judgment of 16 July 2009, Damseaux (C-128/08, EU:C:2009:471,

paragraph 33 and the case-law cited).

14 Judgment of 16 July 2009, Damseaux (C-128/08, EU:C:2009:471, paragraph 22 and the

case-law cited).

15 Judgment of 16 July 2009, Damseaux (C-128/08, EU:C:2009:471, paragraph 22 and the

case-law cited).

16 See, to that effect, judgment of 6 October 1976, Industrie Tessili Italiana Como (12/76,
EU:C:1976:133, paragraph 9).

17 See judgment of 12 May 1998, Gilly (C-336/96, EU:C:1998:221, paragraph 15), and order
of 19 September 2012, Levy and Sebbag (C-540/11, not published, EU:C:2012:581, paragraph
27).
18 See orders of the President of the Court of 5 August 1983, CMC and Others v Commission
(118/83 R, EU:C:1983:225, paragraph 53), and of 24 April 2008, Commission v Malta (C-76/08
R, not published, EU:C:2008:252, paragraph 19). The Court also acknowledged that it could
order interim measures within the meaning of Article 279 TFEU in the context of an action for
failure to fulfil obligations brought by a Member State against another Member State pursuant
to Article 259 TFEU; see judgment of 30 May 2006, Commission v Ireland (C-459/03,
EU:C:2006:345, paragraph 138).

19 See order of the President of the Court of 24 April 2008, Commission v Malta (C-76/08 R,
not published, EU:C:2008:252, paragraphs 17 and 19). See also, to that effect, order of the
Court of 28 March 1980, Commission v France (24/80 R and 97/80 R, not published,
EU:C:1980:107, paragraphs 16 to 19).

20 As regards the review of legality based on Article 263 TFEU and the action for failure to
act provided for in Article 265 TFEU, see, in particular, the order of 24 November 2016,
Petraitis v Commission (C-137/16 P, not published, EU:C:2016:904, paragraphs 31 and 32 and
the case-law cited), as well as the orders of 16 November 2009, Goldman Management v
Commission and Bulgaria (T-354/09, not published, EU:T:2009:439, paragraph 17), and of 26
June 2012, Szarvas v Hungary (T-129/12, not published, EU:T:2012:319, paragraph 10).

21 Broadly speaking, ‘interest’ consists in income from the provision of funds (debt-claims)
until reimbursement, paid on a contractual basis and which arises from debt financing,
whereas ‘dividends’ are remuneration for the contribution of risk capital (participation in share
capital), paid in the context of a shareholder relationship and arising from equity financing. See
in that regard, in particular, Hoor, O., Le modèle OCDE de convention fiscale, Analyse
technique détaillée, Legitech, Luxembourg, 2016, p. 106.

22 See the commentaries of the OECD Committee on Fiscal Affairs, published in Model tax
convention on income and on capital, condensed version, OECD, Paris, 1998.

23 As regards compliance with those rules of interpretation in the context of international

agreements concluded by the European Union, see, in particular, the judgment of 24
November 2016, SECIL (C-464/14, EU:C:2016:896, paragraph 94 and the case-law cited).

24 See in that regard, in particular, judgment of 21 December 2016, Council v Front Polisario
(C-104/16 P, EU:C:2016:973, paragraph 86 and the case-law cited).
25 Moreover, some authors note that virtually none of the bilateral conventions for the
avoidance of double taxation concluded by the Federal Republic of Germany since 1991
contain any reference to the laws of the source State in relation to the definition of the
concept of ‘interest’: see, in particular, Bärsch, S.-E., ‘The Definitions of Dividends and Interest
Contained in the OECD Model, Actual Tax Treaties, and the German Model’, Intertax, No 6-7,
2014, p. 438.

26 Emphasis added.

27 Emphasis added.

28 Paragraph 12 of the commentaries on Article 3(2) of the OECD model convention, on

which Article 3(2) of the German-Austrian Convention is based, confirms that the ‘context’ is
determined in particular by the intention of the Contracting States when signing the
Convention.

29 See also, in particular, Cornu, G., Vocabulaire juridique, 9th ed., PUF, Paris, 2012, p. 733,
which provides the following definition of that phrase: ‘vocation à une fraction des bénéfices
de l’entreprise ou d’une exploitation, qui peut procéder d’origines diverses (société, prêt,
contrat de travail)’ [‘entitlement to a share of the profits of an undertaking or operation which
may flow from various sources (company, loan, employment contract)’].

30 See also, in particular, Munn, G.G., Garcia, F.L., and Woelfel, C.J., The Encyclopedia of
Banking and Finance, 10th ed., Salem Press, Chicago, 1993; Auckenthaler, F., Droit des marchés
de capitaux, L.G.D.J, Paris, 2004, p. 50, and Antoine, J., and Capiau-Huart, M., Dictionnaire des
marchés financiers, De Boeck & Larcier, Brussels, 2006, p. 361.

31 In addition to the references in German made by the Republic of Austria in its

application, see, in particular, Bundgaard, J., and Dyppel, K.J., ‘Profit-Participating Loans in
International Tax Law’, Intertax, No 12, 2010, p. 644. It should be noted that those authors use
the phrase ‘profit-participating loans’ in a general sense as designating several types of
financial instruments, which include ‘Gewinnobligationen’ and ‘partiarischen Darlehen’. See,
also, Hasbargen, U., and Johnsen, K.M., ‘Financing of German subsidiaries — German and US
tax treatment of silent partnerships and profit participating loans’, Intertax No 8/9, 1990, p.
377 which specifies that a ‘profit-participating loan’ ‘is in all respects identical to a fixed
interest loan except that the return is variable, as it is calculated on the basis of the company’s
profits or gross revenues’.

32 On the difficulties caused by those legal concepts in international tax law, see in that
regard, in particular, Hasbargen, U., and Johnsen, K.M., ‘Financing of German subsidiaries —
German and US tax treatment of silent partnerships and profit participating loans’, Intertax No
8/9, 1990; Heidemann, M., and Knebel, A., ‘Double Taxation Treaties: The Autonomous
Interpretation Method in German and English Law as demonstrated by the Case of the Silent
Partnership’, Intertax, No 3, 2010, p. 136; Schnaffer, J., Droit fiscal international, Promoculture-
Larcier, Windhof, 2014, pp. 349 to 352 and p. 444, and Lipp, M., ‘The German Silent
Partnership’, European Taxation, 2015, p. 325.

33 See, in particular, Schnaffer, J., Droit fiscal international, Promoculture-Larcier, Windhof,

2014, pp. 349 to 352, and Lipp, M., ‘The German Silent Partnership’, European Taxation, 2015,
p. 327.

34 GZ I R 53/09.