Case C-531/03: Action brought on 18 December 2003 by the Commission of the European Communities against the Federal Republic of Germany
Date: 2004-03-06
Institutions: Court of Justice
Subjects: European Commission, Germany, action for failure to fulfil an obligation, environmental impact, road building

C 59/8

EN

Official Journal of the European Union

6.3.2004

2.

order the Kingdom of the Netherlands to pay the costs.

Action brought on 18 December 2003 by the Commission
of the European Communities against the Federal Repub-
lic of Germany

Pleas in law and main arguments

The period for implementation of the Directive expired on
28 December 2002.

(1) OJ 2000 L 332, p. 81.

(Case C-531/03)

(2004/C 59/14)

Action brought on 15 December 2003 by the Commission
of the European Communities against the Kingdom of the
Netherlands

(Case C-528/03)

(2004/C 59/13)

An action against the Kingdom of the Netherlands was brought
before the Court of Justice of the European Communities on
15 December 2003 by the Commission of the European
Communities, represented by K. Simonsson and W. Wils,
acting as Agents.

The applicant claims that the Court should:

1.

declare that, by failing to adopt the laws, regulations
and administrative provisions necessary to comply with
Commission Directive 2002/35/EC (1) of 25 April 2002
concerning the setting up of a harmonised safety regime
for fishing vessels of 24 metres in length and over, or, in
any event, by failing to notify the Commission of those
measures, the Kingdom of the Netherlands has failed to
fulfil its obligations under that directive;

An action against the Federal Republic of Germany was
brought before the Court of Justice of the European Communi-
ties on 18 December 2003 by the Commission of the European
Communities, represented by Josef Christian Schieferer, of the
Legal Service of the Commission of the European Communi-
ties, and Florence Simonetti, a national civil servant on
secondment to the Legal Service of the Commission, acting as
Agents, with an address for service in Luxembourg.

The applicant claims that the Court should:

1. Declare that the Federal Republic of Germany has failed
to fulfil its obligations under Article 4, in conjunction
with point 7(b) and (c) of Annex I and point 10(e) of
Annex II, of Council Directive 85/337/EEC (1)of 27 June
1985 on the assessment of the effects of certain public
and private projects on the environment, as amended by
Council Directive 97/11/EC (2) of 3 March 1997,

— in so far as that directive has, in particular, not yet
been transposed for purposes of road construction
projects in the federal Land of Rhineland-Palatinate
and

— in so far as it is possible for road construction
projects in the federal Land of North Rhine-
Westphalia to be granted development consent
without an environmental impact assessment being
carried out;

2.

order the Kingdom of the Netherlands to pay the costs.

2. Order the Federal Republic of Germany to pay the costs

of the proceedings.

Pleas in law and main arguments

The period for implementation of the Directive expired on
1 January 2003.

Pleas in law and main arguments

(1) OJ 2002 L 112, p. 21.

The period for transposition of Directive 97/11/EC amending
Directive 85/337/EEC expired on 14 March 1999 without the
federal Land of Rhineland-Palatinate having adopted the
necessary measures to implement it, in particular in relation to
road construction projects.

6.3.2004

EN

Official Journal of the European Union

C 59/9

Furthermore, there are no legal measures in place in the
federal Land of North Rhine-Westphalia for ensuring that an
environmental impact assessment will be carried out if, under
the law of that Land,
it is to be anticipated that a road
construction project will have a significant impact on the
environment.

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

Action brought on 19 December 2003 by the Commission
of the European Communities against the Council of the
European Union

(Case C-533/03)

(2004/C 59/15)

An action against the Counci of the European Union was
brought before the Court of Justice of the European Communi-
ties on 19 December 2003 by the Commission of the European
Communities, represented by R. 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 1798/2003 of
7 October 2003 on administrative cooperation in the
field of value added tax and repealing Regulation (EEC)
No 218/92 (1) and Council Directive 2003/93/EC of
7 October 2003 amending Council Directive 77/799/
EEC concerning mutual assistance by the competent
authorities of the Member States in the field of direct and
indirect taxation (2) are void;

2. maintain the effects of these measures until the entry into
force of legislation adopted on the correct legal basis;

3.

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

According to the second paragraph of Article 95 EC, the
derogation from Article 94 contained in Article 95, para-
graph 1, shall not apply to fiscal provisions. In the view of
the Commission, the expression ‘fiscal provisions’ 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. Conversely, the
Commission submits that that logic does not 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 States’
own tax rules do not impinge on the tax jurisdiction of
Member States.

The Commission submits that the provisions of Regulation
1798/2003 cannot properly be regarded as effecting a harmon-
isation or approximation of national tax rules. Regulation
1798/2003 is concerned solely with the exchange of infor-
mation in relation to transactions which take place across
frontiers within the Community, in order to enable national
tax authorities to cooperate with each other and with the
Commission to ensure compliance with the law on VAT in the
absence of frontier controls. It does not affect any rules which
are properly to be regarded as ‘fiscal provisions’ within the
meaning of Article 95(2) EC or ‘legislation concerning turnover
taxes’ within the meaning of Article 93 EC.

For its part, Directive 2003/93 amends Directive 77/799 solely
by the deletion of value added tax and the insertion of taxes
on insurance premiums. It does not affect the nature of that
directive, which concerns the exchange of information and
thus does not constitute the harmonisation of ‘fiscal provisions’
within the meaning of Article 95(2) EC.

It must therefore be concluded that the object of the legislation
in question is the completion of the internal market. It does
not constitute a set of measures harmonising tax provisions.
The correct legal base is thus Article 95 EC.

The Commission accordingly submits that Council Regulaton
(EC) No 1798/2003 and Council Directive 2003/93/EC were
adopted on an incorrect
the
prerogatives of the Parliament.

in disregard of

legal basis,

Pleas in law and main arguments

(1) OJ L 264, 15.10.2003, p. 1.
(2) OJ L 264, 15.10.2003, p. 23.

The issue in this case is whether Articles 93 and 94 on the one
hand or Article 95 EC on the other is the correct legal basis
for the adoption of a measure such as Regulation 1798/2003
and Directive 2003/93.