Official Journal of the European Union EN 23.8.2003 C 200/17
Does subparagraph (a) of the first paragraph of Article 13C of
the Sixth Council Directive (77/388/EEC) of 17 May 1977 onthe harmonisation of the laws of the Member States relating toturnover taxes —Common system of value added tax (
1),
permit a Member State which has exercised the power to allow
taxpayers a right of option for taxation in cases of letting and
leasing of immovable property to make full deduction of theinput VAT conditional upon non-retroactive approval of the taxauthorities first being obtained?
(1) OJ L 145, 13.06.1977, p. 1.
Action brought on 23 June 2003 by the Commission of
the European Communities against the Italian Republic
(Case C-270/03)
(2003/C 200/30)
An action against the Italian Republic was brought before the
Court of Justice of the European Communities on 23 June2003 by the Commission of the European Communities,represented by L. Visaggio and R. Amorosi, acting as Agents.
The applicant claims that the Court should:
— declare that, by permitting undertakings, under
Article 30(4) of Legislative Decree No 22, of 5 February1997, as amended by Law No 426, of 9 December 1998,
to collect and transport their own non-hazardous waste,
as an ordinary activity, without requiring them to beregistered in the national register of undertakings carryingout waste disposal services, and, in addition, by permit-ting undertakings to transport their own hazardous wastein quantities of less than 30 kg and 30 litres per day,
without requiring them to be entered in that register, the
Italian Republic has failed to fulfil its obligations underArticle 12 of Directive 75/442/EEC (
1) on waste, as
amended by Directive 91/156/EEC (2);
— order the Italian Republic to pay the costs.
Pleas in law and main arguments
As regards non-hazardous waste, Article 30(4) of the Legisla-
tive Decree expressly exempts undertakings which, on their
own account, collect and transport non-hazardous waste in
the course of their particular occupational activities from therequirement of registration in the national register of under-takings carrying out waste disposal services.As regards hazardous waste transported directly by its
producer, the same provision of the Italian decree establishesa further exemption from the requirement of registration inthe register referred to above, which applies to undertakingsthat transport less than 30 litres or 30 kg of waste per day.
In sum, the requirement in question is limited to the collection
and transportation of hazardous waste, except in cases where
the collection or transportation of such waste is carried out by
its producer in quantities below a certain daily limit, and tothe collection and transportation of non-hazardous waste onbehalf of others.
That is clearly inconsistent with the directive. According to
Article 12 of the directive, all undertakings, without distinc-tion, which on a professional basis collect or transport wasteof any kind, whether hazardous or non-hazardous, must,
where not subject to authorisation, be registered with the
competent authorities.
(1) OJ L 194, 25.07.1975, p. 39.
(2) OJ L 78, 26.03.1991, p. 32.
Action brought on 21 June 2003 by Ireland against the
Commission of the European Communities
(Case C-271/03)
(2003/C 200/31)
An action against the Commission of the European Commu-
nities was brought before the Court of Justice of the European
Communities on 21 June 2003 by Ireland, represented by
D.J. O'Hagan, acting as agent, assisted by P. Gallagher SC,P. McGarry, Barrister and J. Buttimore of the Office of theAttorney General, with an address for service in Luxembourg.
The Applicant claims that the Court should:a) declare the action admissible;
b) annul Commission Decision C(2003)1084 reducing assis-
tance granted from the European Regional DevelopmentFind (ERDF) to the Global Grant Scheme for PrivateSector Tourism and Development, Operational Programmefor Tourism (1989-1993) sub-programme 2, in Ireland
under Commission Decision C89(2258/7) of 21 December
1989;
c) order the Commission to bear the costs of the proceed-
ings.
Official Journal of the European Union EN 23.8.2003 C 200/18
Pleas in law and main arguments
The Applicant submits that Commission Decision
C(2003)1084 should be annulled on the following grounds:
I.Manifest error of approach or assessment by the Commis-
sion
a) The Irish Authorities do not accept the validity of the
extrapolation exercise purportedly carried out by theCommission and submit that extrapolation is not anacceptable methodology for establishing a monetary
repayment value in the case of very broadly-based grant
schemes such as the Operational Programme for Tourism,1989 —1993. Further, it is submitted that the Commis-
sion has failed to identify the legal basis on which theextrapolation exercise it has purported to carry out is
based.
b) The application by the Commission of its own definition
of the meaning of the terms of Article 23 of Regulation
4253/88 (
1) in a manner that permits it to extend the
scope of its powers amounts to an infringement of theexpress provisions of that article and constitutes a mani-fest error of assessment on the part of the Commission inthe exercise of its discretion pursuant to Article 24
thereof.
c) It is manifestly erroneous of the Commission to seek to
justify imposing a penalty on Ireland on the basis of
Datasheets, published in April 1997, several years after
the Programme finished on the basis that they representeda codification of previously established practice, when thisgeneral practice had not been established by either theCommission or the European Court of Auditors in theirmonitoring of the Programme.
d) It is furthermore submitted that the Commission was
manifestly wrong in concluding that there were errors or
risks inherent in the reporting system developed by the
Irish authorities.
II.Infringement of a fundamental rule of law relating to the
implementation of the Treaty
In exercising its discretion pursuant to Article 24 of Regulation
4253/88, the Commission misdirected itself or was wrong in
law in failing to take account of the matters pleaded in theapplication. The Commission approach is in breach of theprovisions of inter alia, articles 23 and 24 of Regulation4253/88.
III.Failure to respect the principles of non-retrospectivity,
legal certainty, and legitimate expectation
The retrospective application of standards for financial manage-
ment, and in particular the issue of eligibility criteria, that werenot developed until several years after the conclusion of the
projects in issue in circumstances where the procedures usedwere at all times in accordance with best practice at the timeas approved by the Commission amounts to a retrospectiveapplication of Community rules by the Commission.
IV.Breach of the principle of proportionality and/or the
principles in relation to the imposition of penalties
The Commission clearly had available alternatives to the deci-
sion adopted in this case. The approach adopted by the
Commission is out of all proportion to the result intended to
be achieved having regard to the ongoing efficacy of theprojects in issue and the nature of the project beneficiary.Such an approach effectively amounts to the imposition of apenalty in circumstances where there is no evidence of anywrongdoing on the part of any undertaking or authority.
(1) Council Regulation (EEC) No 4253/88 of 19 December 1988,
laying down provisions for implementing Regulation (EEC)
No 2052/88 as regards coordination of the activities of the
different Structural Funds between themselves and with the opera-
tions of the European Investment Bank and the other existing
financial instruments OJ L 374, 31.12.1988, p. 1-14.
Action brought on 24 June 2003 by the Commission of
the European Communities against Ireland
(Case C-274/03)
(2003/C 200/32)
An action against Ireland was brought before the Court of
Justice of the European Communities on 24 June 2003 by theCommission of the European Communities, represented byMr Georges Zavvos, acting as agent, with an address for servicein Luxembourg.
The Applicant claims that the Court should:1) declare that, by failing to adopt the laws, regulations and
administrative provisions necessary to comply with Direc-
tive 2000/26/EC of the European Parliament and of the
Council of 16 May 2000 on the approximation of thelaws of the Member States relating to insurance againstcivil liability in respect of the use of motor vehicles andamending Council Directives 73/239/EEC and 88/357/EEC(Fourth motor insurance Directive), published in the Offi-
cial Journal L 181, 20.07.2000, p. 65-74, or in any event
by failing to communicate them to the Commission,Ireland has failed to fulfil its obligations under the Direc-tive;