Case C-271/03: Action brought on 21 June 2003 by Ireland against the Commission of the European Communities
Date: 2003-08-23
Institutions: Court of Justice
Subjects: European Commission, European Regional Development Fund, Ireland, action for annulment (EU), aid system, tourism

23.8.2003

EN

Official Journal of the European Union

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 on
the harmonisation of the laws of the Member States relating to
taxes — Common system of value added tax (1),
turnover
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 the
input VAT conditional upon non-retroactive approval of the tax
authorities 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
the European Communities on 23 June
Court of
Justice of
2003 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

by

that,

undertakings,

under
permitting
Article 30(4) of Legislative Decree No 22, of 5 February
1997, 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 be
registered in the national register of undertakings carrying
out waste disposal services, and,
in addition, by permit-
ting undertakings to transport their own hazardous waste
less than 30 kg and 30 litres per day,
in quantities of
without requiring them to be entered in that register, the
Italian Republic has failed to fulfil
its obligations under
Article 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 the
requirement of registration in the national register of under-
takings carrying out waste disposal services.

regards hazardous waste

transported directly by its
As
producer, the same provision of the Italian decree establishes
a further exemption from the requirement of registration in
the register referred to above, which applies to undertakings
that 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 to
the collection and transportation of non-hazardous waste on
behalf of others.

is clearly inconsistent with the directive. According to
That
Article 12 of the directive, all undertakings, without distinc-
tion, which on a professional basis collect or transport waste
of 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,
the
P. McGarry, Barrister and J. Buttimore of
Attorney General, with an address for service in Luxembourg.

the Office of

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 Development
Find (ERDF)
to the Global Grant Scheme for Private
Sector Tourism and Development, Operational Programme
in Ireland
for Tourism (1989-1993) sub-programme 2,
under Commission Decision C89(2258/7) of 21 December
1989;

c)

order the Commission to bear the costs of the proceed-
ings.

C 200/18

EN

Official Journal of the European Union

23.8.2003

Pleas in law and main arguments

Applicant

The
C(2003)1084 should be annulled on the following grounds:

Commission

submits

that

Decision

not developed until several years after the conclusion of the
projects in issue in circumstances where the procedures used
were at all times in accordance with best practice at the time
as approved by the Commission amounts to a retrospective
application of Community rules by the Commission.

I. Manifest error of approach or assessment by the Commis-

sion

IV. Breach of

the principle of proportionality and/or the

principles in relation to the imposition of penalties

a)

b)

c)

d)

The Irish Authorities do not accept the validity of the
extrapolation exercise purportedly carried out by the
Commission and submit
that extrapolation is not an
establishing a monetary
acceptable methodology for
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 the
is
extrapolation exercise it has purported to carry out
based.

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 the
express provisions of that article and constitutes a mani-
fest error of assessment on the part of the Commission in
the exercise of
to Article 24
its discretion pursuant
thereof.

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 represented
a codification of previously established practice, when this
general practice had not been established by either the
Commission or the European Court of Auditors in their
monitoring of the Programme.

is furthermore submitted that

the Commission was
It
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 the
application. The Commission approach is in breach of
the
inter alia, articles 23 and 24 of Regulation
provisions of
4253/88.

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 were

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
the
be achieved having regard to the ongoing efficacy of
projects in issue and the nature of
the project beneficiary.
Such an approach effectively amounts to the imposition of a
penalty in circumstances where there is no evidence of any
wrongdoing on the part of any undertaking or authority.

down provisions

(1) Council Regulation (EEC) No 4253/88 of 19 December 1988,
implementing Regulation (EEC)
laying
No 2052/88 as
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.

regards coordination of

the activities of

for

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 the
Commission of
the European Communities, represented by
Mr Georges Zavvos, acting as agent, with an address for service
in 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 the
laws of the Member States relating to insurance against
civil liability in respect of the use of motor vehicles and
amending 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;