Case C-512/03: Reference for a preliminary ruling by the Gerechthof Herzogenbusch by order of that Court of 4 December 2003 in the case of J.E.J. Blanckaert against Inspecteur van de Belastingdienst/Particulieren/Ondernemingen Buitenland te Heerlen
Date: 2004-02-21
Institutions: Court of Justice
Subjects: interpretation of the law, social-security contribution, tax exemption, tax on income, worker (EU)

21.2.2004

EN

Official Journal of the European Union

C 47/17

Pleas in law and main arguments

The White City Development

The Commission submits that the competent authority could
not reasonably have reached the conclusion that an impact
assessment was unnecessary when it based such a conclusion
principally or solely on the fact that the land in question had
been previously developed. That criterion for excluding the
need of an impact assessment is an innovation of Government
Circular 15/68. Directive 85/337/EEC contains no such test
and it is submitted that, by relying on a ground for excluding an
impact assessment which is not found in the aforementioned
Directive, the United Kingdom has failed to apply Articles 2(1)
and 4(2) of that Directive correctly in the case of the proposed
urban development project at White City.

The Crystal Palace Development

The Commission maintains that, by not requiring an impact
assessment for the Crystal Palace development, the United
Kingdom has exceeded its margin of discretion under Directive
85/377/EEC. The Commission submits that the margin of
discretion afforded a Member State under Article 4(2) of the
Directive is not unlimited. The limits of that discretion are
circumscribed by Article 2(1) of the Directive — i.e. an impact
assessment is required where a project, by virtue of its size,
nature or location, is likely to have significant environmental
effects. The Commission submits that, according to those
criteria, the project is likely to have such effects.

Multi-stage procedure governing applications for planning
permission

The Commission does not question the legality of dividing the
planning process into two stages per se, but submits that the
manner in which planning authorisation is actually divided
into two stages in the United Kingdom leads to results which
are incompatible with Directive 85/337/EEC.

A large urban development project may escape assessment at
the outline planning stage and no impact assessment
is
possible (under English law) at the second, reserved matters
stage. Consequently, a large urban development project which
is likely to have significant effects on the environment is not
considered as a whole but in separate parts. The practical result
is that the likely effects on the environment are not considered
in the light of the project as a whole.

Even if an environmental impact assessment is carried out at
the outline planning stage, it may be inadequate because it is
based on the information provided in the outline planning
application which may be insufficient to evaluate the effects of
the development as a whole on the environment. Thus, the
impact assessment will be carried out on an incomplete basis.

(1) OJ 1985 L 175, p. 40.
(2) OJ 1997 L 73, p. 5.

Reference for a preliminary ruling by the Gerechthof
Herzogenbusch by order of that Court of 4 December
2003 in the case of J.E.J. Blanckaert against Inspecteur van
de Belastingdienst/Particulieren/Ondernemingen Buiten-
land te Heerlen

(Case C-512/03)

(2004/C 47/28)

Reference has been made to the Court of Justice of the
European Communities by order of the Gerechthof Herzogen-
busch of 4 December 2003, received at the Court Registry on
8 December 2003, for a preliminary ruling in the case of
J.E.J. Blanckaert against Inspecteur van de Belastingdienst/
Particulieren/Ondernemingen Buitenland te Heerlen on the
following questions:

1.

Is a foreign taxpayer, who is a resident of a Member State
and does not receive any income from employment in
the Netherlands, but only from savings and investments,
and who is therefore not obliged to pay, and does not
pay, any social security contributions to the Netherlands
national insurance schemes, entitled under EC law to
Netherlands tax credits for national insurance schemes
(general old-age insurance, general insurance for depend-
ants and general
special medical
insurance against
expenses) in the calculation of his taxable income from
savings and investments,
in the case where resident
taxpayers are entitled to those tax credits in the calculation
of their taxable income from savings and investments
because they are regarded as insured and as obliged to
pay social security contributions to the Netherlands
national insurance schemes, even if they do not receive
any income in the Netherlands from employment, but
only from savings and investments, and for that reason
do not pay any social security contributions in the
Netherlands either?

2.

In answering the first question, is it relevant that the
foreign taxpayer in question earns in excess of or less
than 90 % of his family income in the Netherlands? In
particular:

C 47/18

EN

Official Journal of the European Union

21.2.2004

— Is the Schumacker test

for residents and non-
residents applicable only in the case of subjective or
person-related tax aspects, such as the right to a
personal or family-related tax-free allowance, or
does it also apply to non-person-related tax aspects,
such as the tax rate?

— When deciding whether to treat a non-resident as a
resident, are Member States allowed to apply a
quantitative rule (such as the 90 % rule), despite the
fact that this does not guarantee that all discrimi-
nation will be removed?

3.

Is the right of option as referred to in Article 2.5 of the
Wet IB 2001 an adequate procedural remedy which
ensures that the party concerned may make use of his
rights as guaranteed under the EC Treaty and rules out all
forms of discrimination?

If so, is this also an adequate remedy in the present case
where the party concerned only receives income from
savings and investments, given that the party concerned
is unable to benefit from the right of option, as has been
considered under 4.3?

— by requiring, in connection with the rules applicable
to foreign registrations, that private security firms
should:

(a)

be a legal person in every particular case,

(b) possess a particular amount of share capital,
regardless of the fact that those firms are not
subject to the same obligations in the State of
their establishment;

(c)

lodge security at the Caja General de Depósitos,
regardless of the fact that security may have
been paid in the Member State of origin,

(d) have a minimum number of employees;

— by requiring the employees of a foreign private
security firm to obtain a new specific permit in
Spain when they have already obtained a compar-
able permit in the State of that firm’s establishment;
and by not making occupations in the field of
private security subject to the Community rules on
the recognition of professional qualifications,

the Kingdom of Spain has failed to fulfil its obligations
under Articles 43 and 49 of the EC Treaty and under
Directives 89/48/EEC (1) and 92/51/EEC (2) and

2. Order the Kingdom of Spain to pay the costs.

Action brought on 8 December 2003 by the Commission
of the European Communities against the Kingdom of
Spain

Pleas in law and main arguments

(Case C-514/03)

(2004/C 47/29)

An action against the Kingdom of Spain was brought before
the Court of Justice of the European Communities on 8 Decem-
ber 2003 by the Commission of the European Communities,
represented by Maria Patakia and Luis Escobar, acting as
Agents, with an address for service in Luxembourg.

The applicant claims that the Court should:

1. Declare that:

— by requiring, in the implementing legislation, that
private security firms and the members of their staff
should possess Spanish nationality;

The Spanish legislation concerning private security services
particularly
contravenes Community
Articles 43 and 49 of the EC Treaty, and also, in connection
with recognition of professional qualifications, Directives 89/
48/EEC and 92/51/EEC.

legislation, more

Undertakings that wish to carry out private security activities
on Spanish soil must be authorised to do so by registering
with the Ministry of the Interior, which authorisation is granted
only if certain requirements relating to the form of the
undertaking, share capital, the lodging of security in the Caja
General de Depósitos and the number of the undertaking’s
employees and of its armoured vehicles are satisfied. Moreover,
the Spanish legislation requires each and every member of the
staff of an undertaking intending to provide private security
services in Spain to obtain a specific permit granted if the
person satisfies a series of requirements, and produce more
than the evidence provided for in order to ensure that he or
she possesses the knowledge and abilities needed for the
performance of his or her duties. Those requirements do not
serve to guarantee the attainment of the objectives pursued,
which are public safety or the protection of the persons for
whom the private security services are provided.