Case C-272/02: Action brought on 24 July 2002 by the Commission of the European Communities against the Council of the European Union
Date: 2002-09-14
Institutions: Court of Justice
Subjects: VAT, action for annulment (EU), administrative cooperation, electronic commerce, legal basis, tax law, tax system

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