4.

I can therefore now deal with the fourth question, relating to the legal consequences for the effectiveness of the national law of failure to comply with the duty to consult. Examination of the first question has shown that the rule of interpretation in Point 2 of Annex A gives the Member States a discretion in determining a ‘taxable person’ within the meaning of Article 4 of the Second Council Directive. If they keep within the framework laid down by the Directive there can be no objection to the law in substance and the sole question which arises is whether such a system is made ineffective if there has been no proper consultation as required. As we know there are a number of provisions in Community law requiring such consultation procedures. Article 102 of the EEC Treaty, which is expressly mentioned in Article 16 of the Second Council Directive, provides that where there is reason to fear that the adoption or amendment of a provision laid down by law may cause distortion of the conditions of competition, the Member State shall consult the Commission. Regarding the interpretation of that provision the Court has already stated in Case 6/64 Costa v ENEL (judgment of 15 July 1964 [1964] ECR 583) that the States have undertaken an obligation to the Community which binds them as States, but which does not create individual rights which national courts must protect. The companies take the view that although Article 16 of the Directive refers to Article 102 of the EEC Treaty it is not to be inferred that the consultation procedure provided for in the Directive, like the procedure of Article 102 of the EEC Treaty, does not create individual rights. Article 16 of the Directive, in contrast to Article 102 of the EEC Treaty, is said to make consultation mandatory and to leave the Member States no discretion. In their view, having regard to the case-law of the court on the direct effect of directives, such effect, which the national courts have to respect, must be attributed to the directive in question. Accordingly, so long as the consultations provided for have not taken place the national courts must not treat persons linked to one another by economic, financial or organizational relationships as a single taxable person. The Government of the Federal Republic stresses, on the other hand, that the case-law on Article 102 of the EEC Treaty is especially significant since Article 16 of the Second Council Directive on value-added tax, according to its objectives which are apparent inter alia from the documents relating to the preparatory stages, provides simply a more tentative preliminary to a possible procedure under Article 102 of the EEC Treaty. In my view these observations on the direct effect of the Second Council Directive need concern us no further. In the present case it is solely a question of interpreting the Directive as to the consequences of failure to comply with the obligation to consult. From the objective of the consultation it is apparent that the procedure is only a ‘preliminary’ to a possible subsequent procedure under Article 102 of the EEC Treaty. This is moreover apparent from the history of the directive to which the Government of the Federal Republic refers. I have no objection to reference to the documents relating to the preparatory stages since the obligation to consult concerns only the legal relations between the Commission and the Member States, who were aware of such documents, and does not effect the interests of individuals. If infringement of the obligation to consult imposed on the Member States by Article 102 of the EEC Treaty does not have to be considered by national courts this is all the more the case for the consultation laid down by the Directive. For the same reason I can hardly see how a breach of the obligation to consult can, as the companies think, conflict with the basic requirement of publication which is prescribed in the interests of individuals. It is similarly unnecessary to deal with the consequences alleged by the companies to result for the Netherlands Turnover Tax Law from the adoption of the concept of a single entity for tax purposes, since the Second Council Directive on value-added tax in any event allows such a concept to be adopted. Compliance or non-compliance with the obligation to consult does not alter the matter. For the following reasons in my view non-compliance with the obligation to consult cannot lead to a breach of the Treaty by the national law adopted in implementation of the Directive. Regard must be had to the fact that Article 173 of the EEC Treaty indicates that only the infringement of an essential procedural requirement renders a legal measure unlawful. Apart from the meaning and objective of the consultation upon which I have already given my opinion, the question whether the obligation to consult under Article 16 of the Second Council Directive is an essential procedural requirement can best be answered by a systematic comparison of that article with other provisions, which also contain rules regarding consultation. Article 13, for example, of the same Directive stipulates that should a Member State consider that, in exceptional cases, special measures should be adopted, it shall so inform the Commission and the other Member States. The sixth paragraph of the article then stipulates that the State concerned may not apply the proposed measures until the period for entering objections has expired or after a particular procedure has been implemented. Again, Article 93 (3) of the Treaty provides for the Commission to be informed. The last sentence thereof is to the effect that the Member State concerned shall not put its proposed measures into effect until the procedure has resulted in a final decision of the Commission. These examples convince me that whenever implementation of the consultation procedure is intended to have such decisive effect upon the national power to legislate that the national measure may not be taken without such consultation, this must be mentioned in the particular provision regarding consultation. If this is not done then the infringement of the particular procedural requirement is not so essential as to render the national measure unlawful. Moreover, I find this conclusion to be confirmed by the observation of the Commission on this question. The Commission also doubts that such a defect of form as that arising from lack of consultation can render the national system unlawful.