Case C-338/01

Commission of the European Communities

v

Council of the European Union

(Directive 2001/44/EC – Choice of legal basis)

Summary of the Judgment

1. Acts of the institutions – Choice of legal basis – Criteria – Community measure pursuing a twofold purpose or having a twofold component – Reference to the main or predominant purpose or component – Inseparable objectives – Dual legal bases – Limit – Incompatibility of procedures – Procedures under Articles 93 EC and 94 EC, on the one hand, and under Article 95 EC, on the other

(Arts 93 EC, 94 EC and 95 EC)

2. Approximation of laws – Article 95 EC – Scope – Exclusion of ‘fiscal provisions’ – Concept – Arrangements for the collection of taxes – Included

(Art. 95(2) EC)

3. Tax provisions – Harmonisation of laws – Directive 2001/44 – Legal basis – Articles 93 EC and 94 EC

(Arts 93 EC, 94 EC and 95 EC; Council Directive 2001/44)

1. The choice of the legal basis for a Community measure must rest on objective factors amenable to judicial review, which include in particular the aim and the content of the measure. If examination of a Community measure reveals that it pursues a twofold purpose or that it has a twofold component and if one of these is identifiable as the main or predominant purpose or component whereas the other is merely incidental, the act must be based on a single legal basis, namely that required by the main or predominant purpose or component. By way of exception, if it is established that the measure simultaneously pursues several objectives which are inseparably linked without one being secondary and indirect in relation to the other, the measure must be founded on the corresponding legal bases. No dual legal basis, however, is possible where the procedures laid down for each legal basis are incompatible with each other. In that regard, the procedures set out under Articles 93 EC and 94 EC, on the one hand, and that set out under Article 95 EC, on the other, mean that the latter article cannot be applied in conjunction with one of the other two articles mentioned above in order to serve as the legal basis for the adoption of a Community measure. Whereas unanimity is required for the adoption of a measure on the basis of Articles 93 EC and 94 EC, a qualified majority is sufficient for a measure to be capable of valid adoption on the basis of Article 95 EC. Thus, of the provisions cited above, Articles 93 EC and 94 EC alone may provide a valid dual legal basis for the adoption of a legal measure by the Council.

(see paras 54-58)

2. The words ‘fiscal provisions’ contained in Article 95(2) EC, which excludes the application to such provisions of the procedure for the adoption of approximation measures which have as their object the establishment and functioning of the internal market, as provided for under Article 95(1) EC, must be interpreted as covering not only the provisions determining taxable persons, taxable transactions, the basis of imposition, and rates of and exemptions from direct and indirect taxes, but also those relating to arrangements for the collection of such taxes.

(see para. 67)

3. The Council acted correctly in adopting Directive 2001/44 amending Directive 76/308 on mutual assistance for the recovery of certain claims on the basis of Article 93 EC and Article 94 EC, and not on the basis of Article 95 EC. Directive 2001/44 does in fact relate to ‘fiscal provisions’ within the meaning of Article 95(2) EC, with the result that Article 95 EC cannot constitute the correct legal basis for the adoption of that directive.

(see paras 76-77)