Case C-273/02: Action brought on 24 July 2002 by European Parliament against Council of the European Union
Date: 2002-09-14
Institutions: Court of Justice
Subjects: EC Regulation, European Parliament, VAT, action for annulment (EU), administrative cooperation, electronic commerce, tax law

14.9.2002

EN

Official Journal of the European Communities

C 219/9

Action brought on 24 July 2002 by the Commission of
the European Communities against the Council of the
European Union

The Commission concludes that the object of the legislation in
question is the completion of the internal market and that it
does not constitute a set of measures harmonising tax pro-
visions. The correct legal base is thus Article 95 EC and not
Article 93.

(Case C-272/02)

(2002/C 219/15)

(1) OJ L 128, 15.5.2002, p. 1.
(2) of 27 January 1992 (OJ L 24, 1.2.1992, p. 1).

An action against the Council of the European Union was
brought before the Court of Justice of the European Communi-
ties on 24 July 2002 by the Commission of the European
Communities, represented by Richard Lyal, acting as agent,
with an address for service in Luxembourg.

The Applicant claims that the Court should:

1)

declare that Council Regulation (EC) No 792/2002 (1) of
7 May 2002 amending temporarily Regulation (EEC)
No 218/92 (2) on administrative cooperation in the field
of indirect taxation (VAT) as regards additional measures
regarding electronic commerce is void;

2) maintain the effects of the regulation until the entry into

force of a regulation adopted on the correct legal basis;

3)

order the Council of the European Union to pay the costs.

Pleas in law and main arguments

Action brought on 24 July 2002 by European Parliament
against Council of the European Union

(Case C-273/02)

(2002/C 219/16)

An action against the Council of the European Union was
brought before the Court of Justice of the European Communi-
ties on 24 July 2002 by the European Parliament, represented
by Ch. Pennera and A. Neergaard, acting as Agents, with an
address for service in Luxembourg.

The applicant claims that the Court should:

1.

annul Council Regulation (EC) No 792/2002 of 7 May
2002 amending temporarily Regulation (EEC) No 218/
92 on administrative cooperation in the field of indirect
taxation (VAT) as regards additional measures regarding
electronic commerce (1);

that Council Regulation (EC)
The Commission submits
No 792/2002 has been adopted on an incorrect legal basis, in
disregard of the prerogatives of the European Parliament.

2. maintain the effects of the annulled regulation until the
European Parliament and the Council adopt, on the
proper legal basis, a new regulation;

logic does not,

In the view of the Commission the expression ‘fiscal provisions’
as used in Article 95(2) EC is to be understood as including
rules on taxable persons, taxable events, basis of taxation, rates
and exemptions, along with the detailed rules on assessment
and enforcement. That
the Commission
submits, extend to mutual assistance in tax matters. Measures
of cooperation, verification and information whose purpose is
to facilitate the elimination of frontiers without affecting the
substance of Member State’s own tax rules do not impinge on
the tax jurisdiction of the Member States. Such measures
therefore do not fall within the justification advanced for the
exclusion of ‘fiscal provisions’ from the Article 95(1) EC
derogation, for there is no interference with the right and the
ability of each Member State to organise its tax system as it
wishes.

3.

order the defendant to pay the costs.

Pleas in law and main arguments

Breach of essential procedural requirements and infringement
of the EC Treaty: the contested regulation should have been
based on Article 95 EC. The language of Article 93 EC
‘harmonisation of legislation concerning ... taxes’ indicates that
that provision refers to substantive tax law. Articles 93
and 95(2) EC must, as lex specialis, be interpreted restrictively.
Administrative cooperation measures have no effect on sub-
stantive tax law, which is a matter which falls within the

C 219/10

EN

Official Journal of the European Communities

14.9.2002

purview of the Member States. However, the contested regu-
lation concerns, as evidenced by its title, exclusively adminis-
trative cooperation in the field of indirect taxation (VAT) in
the internal market and not the VAT system properly speaking.

Action brought on 30 July 2002 by the Commission of
the European Communities against the French Republic

( 1) OJ 2002 L 128, p. 1.

(Case C-280/02)

(2002/C 219/18)

Action brought on 29 July 2002 by the Kingdom of Spain
against the Commission of the European Communities

(Case C-276/02)

(2002/C 219/17)

An action against the Commission of the European Communi-
ties was brought before the Court of Justice of the European
Communities on 29 July 2002 by the Kingdom of Spain,
represented by Santiago Ortiz Vaamonde, Abogado del Estado,
with an address for service in Luxembourg at the Spanish
Embassy, 4-6 boulevard E. Servais.

The applicant claims that the Court should:

— declare the decision of the Commission of 14 May 2002
null and void in so far as the Commission therein declared
that the continued failure of GEA (Grupo de Empresas
A´ lvarez) to pay taxes and social security contributions
amounts a grant of State aid incompatible with the
common market, and

— order the defendant institution to pay the costs.

Pleas in law and main arguments

The only thing that has happened is the liquidation of an
undertaking in crisis, preceded by a general procedure for the
suspension of payments. That procedure, initiated and directed
by the court, enables creditors to reach agreements with the
debtor undertaking which, in comparison with an immediate
liquidation, increase the likelihood of the undertaking’s recov-
ery and the payment of some of its debts. The same procedure
for the suspension of payments may, of course, be sought
and obtained by any competing undertakings which bring
complaints, should they to find themselves in a situation of
cessation of payments. The Commission has thus failed to
demonstrate that there has been any State aid subject to
Article 87 EC.

An action against the French Republic was brought before the
Court of Justice of the European Communities on 30 July
2002 by the Commission of the European Communities,
represented by M. Nolin, acting as Agent, with an address for
service in Luxembourg.

The Commission of the European Communities claims that
the Court should:

— Declare that, by not identifying certain areas as sensitive
areas with respect to eutrophication, in the catchment
areas of Seine-Normandie, Loire-Bretagne, Artois-Picardie
and Rhône-Méditerranée-Corse, and not subjecting to
more stringent treatment discharges of urban waste water
from agglomerations with a population equivalent (p.e.)
of more than 10 000 into sensitive areas or areas which
should have been identified as sensitive, the French
Republic has failed to fulfil its obligations pursuant to
Article 5(1) and (2) of and Annex II to Directive 91/271/
EEC (1);

— Order the French Republic to pay the costs.

Pleas in law and main arguments

take account of

they thus did not

— Incomplete identification of sensitive areas: The French
authorities wrongly limited themselves to identifying
bodies of water where they consider eutrophication to be
established;
the
obligation also to identify as sensitive, in accordance with
Annex II to the Directive, bodies of water ‘which in the
near future may become eutrophic if protective action is
not taken’. For that reason, or because eutrophication
should already have been identified, the Commission
considers that the French Republic has failed to identify,
in breach of its obligations pursuant to Article 5(1) of
and Annex II to the Directive:

— in Seine-Normandie: the Seine bay, the Seine and its
tributaries downstream from its confluence with the
Andelle;

— in Loire-Bretagne: Lorient harbour, the Elorn estuary,
the bay of Douarnenez, Concarneau bay, the Gulf of
Morbihan, the bay of Vilaine and the Sèvre-Niortaise;