Case C-317/02: Action brought on 11 September 2002 by the Commission of the European Communities against Ireland
Date: 2002-10-26
Institutions: Court of Justice
Subjects: Ireland, action for failure to fulfil an obligation, catch quota, conservation of fish stocks, fishing regulations, infringement of EU law

C 261/8

EN

Official Journal of the European Communities

26.10.2002

Reference for a preliminary ruling by the Verwaltungs-
gerichtshof by order of that Court of 27 August 2002 in
the appeal brought by Annliese Lenz against Finanzlan-
desdirektion für Tirol (the regional finance authority for
Tyrol)

Action brought on 11 September 2002 by the Com-
mission of the European Communities against Ireland

(Case C-315/02)

(2002/C 261/12)

(Case C-317/02)

(2002/C 261/13)

Reference has been made to the Court of Justice of the
European Communities by order of the Verwaltungsgerichts-
hof (Administrative Court) of 27 August 2002, received at the
Court Registry on 6 September 2002, for a preliminary ruling
in the appeal brought by Annliese Lenz against Finanzlandesdi-
rektion für Tirol (the regional finance authority for Tyrol) on
the following questions:

1. Does Article 73b(1) in conjunction with Article 73d(1)(a)
and (b) and (3) of the EC Treaty (now Article 56(1) in
conjunction with Article 58(1)(a) and (b) and (3) EC)
preclude a provision such as that in Paragraph 97(1) and
(4) of the Einkommensteuergesetz 1988 (1988 Law on
Income Tax) in conjunction with Paragraph 37(1) and (4)
of the Einkommensteuergesetz 1988, under which a
taxpayer in receipt of dividends from domestic shares
may choose whether they should be subject to a tax rate
of 25 % on flat-rate and final taxation or whether they
should be taxed at a rate equivalent to half of the average
tax rate applicable to the aggregate income, whereas
dividends from foreign shares are always taxed at the
normal rate of income tax?

An action against Ireland was brought before the Court of
Justice of the European Communities on 11 September 2002
by the Commission of the European Communities, represented
by Thomas van Rijn and Keir Fitch, acting as agents, with an
address for service at the office of Luis Escobar Guerrero,
Centre Wagner C-254, Luxembourg.

The Applicant claims that the Court should:

1.

declare that

— in not putting in place the criteria and detailed rules
for the use of the fishing quota allocated to it,

— by failing to ensure compliance with Community
rules on the conservation of aquatic marine living
resources by the monitoring of fishing activities,
appropriate inspection of landings and the recording
of catches, inspections and other controls as required
by the relevant Community Regulations,

2.

3.

Is the level of
taxation of the revenue of a limited
company which has its seat and head office in another
EU Member State or a non-Member State in which shares
are held of relevance to the answer to the first question?

— by failing to prohibit provisionally fishing by vessels
flying its flag or registered in its territory when the
quotas allocated to it were deemed to be exhausted,
and

If the answer to the first question is in the affirmative,
can the situation described in Article 73b(1) of the EC
Treaty (now Article 56(1) EC) arise as a result of the
corporation tax paid in the countries in which they are
established by companies limited by shares with seats and
head offices in other EU Member States or non-Member
States being credited pro rata against the Austrian income
tax payable by the recipient of the dividends?

— by failing to initiate administrative or criminal
proceedings against the masters of vessels infringing
the Regulations, or against such other person as was
responsible for such infringement, Ireland has failed
to carry out the obligations imposed on it by i)
article 9 (2) of Regulation (EEC) No 3760/92
of 20 December 1992 establishing a Community
system for fisheries and aquaculture (1), ii) article 2
of Regulation (EEC) 2847/93 of 12 October 1993
establishing a control system applicable to the
common fisheries policy (2), iii) article 21 of Regu-
lation 2847/93,
iv) article 31 of Regulation
No 2847/93.

26.10.2002

EN

Official Journal of the European Communities

C 261/9

2.

order Ireland to pay the costs.

The applicant claims that the Court should:

Pleas in law and main arguments

The Commission submits that:

— Ireland has infringed Article 9(2) of Regulation 3760/92
by failing to put in place appropriate detailed rules for
proper utilisation of the quota allocated to it. The rules
should have been such as to enable Ireland to ensure that
overfishing did not take place and that quotas were
always respected;

— Ireland did not ensure compliance with Community rules
on control, contrary to Article 2 of Regulation 2847/93;

— Declare that, by restricting itself to transposing part of
Article 1 of and Annexes IV and V of Council Directive
98/81/EC of 26 October 1998 on the contained use of
genetically modified micro-organisms (1) or, in any event,
by failing to communicate other implementing measures
to the Commission, the Grand Duchy of Luxembourg has
failed to fulfil
its obligations under Article 2 of that
directive;

— Order the Grand Duchy of Luxembourg to pay the costs.

Pleas in law and main arguments

— Ireland did not respect its obligation under Article 21 of
Regulation 2847/93 to prohibit
fishery provisionally
when the quota allocated to it was deemed to have been
exhausted;

Under Article 249 of the EC Treaty, according to which a
directive is to be binding, as to the result to be achieved, upon
each Member State to which it is addressed, Member States are
required to observe the time-limits laid down in directives for
their transposition.

— by failing to institute criminal or administrative proceed-
ings against the skipper or any other party responsible
for preventing overfishing Ireland has not complied in
full with the obligations imposed by Article 31 of
Regulation 2847/93.

The Commission finds that, despite the prescribed time-limit
having expired, the Grand Duchy of Luxembourg has carried
out only a partial transposition of the directive referred to in
the Commission’s pleadings, restricted to part of Article 1
thereof and Annexes IV and V thereto.

( 1) OJ L 389, 31.12.1992, p. 1.
( 2) OJ L 261, 20.10.1993, p. 1.

(1) OJ 1998 L 330, p. 13.

Action brought on 16 September 2002 by Commission
of the European Communities against Grand Duchy of
Luxembourg

Action brought on 18 September 2002 by the Com-
the
mission of

the European Communities against

Hellenic Republic

(Case C-325/02)

(2002/C 261/14)

(Case C-328/02)

(2002/C 261/15)

An action against the Grand Duchy of Luxembourg was
brought before the Court of Justice of the European Communi-
the
ties on 16 September 2002 by the Commission of
European Communities,
represented by U. Wölker and
F. Simonetti, acting as Agents.

An action against the Hellenic Republic was brought before
the Court of Justice of the European Communities on 11 Sep-
tember 2002 by the Commission of the European Communi-
ties, represented by Maria Kondou-Durande, Legal Adviser in
its Legal Service, with an address for service in Luxembourg.