Case C-183/05: Action brought on 22 April 2005 by the Commission of the European Communities against Ireland
Date: 2005-07-23
Institutions: Court of Justice
Subjects: European Commission, Ireland, action for failure to fulfil an obligation, environmental protection, national implementing measure, protected species, protection of animal life, protection of plant life, wildlife

C 182/22

EN

Official Journal of the European Union

23.7.2005

The applicant claims that the Court should:

is

annual

in Austria

— declare that, by allowing taxable persons not established in
Austria and who transport passengers there not to submit
tax return forms and not to pay the net amount of VAT,
when their
below
turnover
EUR 22 000, in assuming, in this case, that the amount of
VAT owed is equal to the amount of deductible VAT and
that the application of the simplified regulation is contin-
gent on Austrian VAT not being in invoices or in other
documents serving as invoices, the Republic of Austria has
failed to fulfil its obligations under Articles 2, 6, 9(2)(b), 17,
18 and 22(3)
the Sixth Council Directive
77/388/EEC of 17 May 1977 on the harmonisation of the
laws of the Member States relating to turnover taxes —
Common system of value added tax: uniform basis of
assessment; (1)

to (5) of

Republic of Austria to tax,
from 1 January 2001 to 31
December 2005, the international transportation of passengers
carried out by taxable persons not established in Austria by
means of motor vehicles not registered in Austria in derogation
from Article 11 of the abovementioned directive. This excep-
tion is, however, expressly based on the condition that the
distance covered in Austria be taxed on the basis of an average
taxable amount per person and per kilometre.

(1) OJ 1977 L 145, p. 1

— order the defendant to pay the costs of the proceedings.

Action brought on 22 April 2005 by the Commission of
the European Communities against Ireland

Pleas in law and main arguments

For international passenger transport by taxable persons estab-
lished in another Member State or in a third country, simplified
rules have been in force in Austria since 1 April 2002. Such
taxable persons are permitted not to submit tax return forms
and not to pay the net amount of VAT, when their annual
turnover in Austria is below 22 000 euros. The rules assume
that,
in this case, the amount of VAT owed is equal to the
amount of deductible VAT. At the same time taxable persons
who take advantage of these simplified rules do not have to
state the Austrian VAT in their invoices or in other documents
serving as invoices.

These rules are neither in accordance with the provisions of
Council Directive 77/388/EEC of 17 May 1977 (‘Sixth VAT
Directive’) nor with Council Decision 2001/242/EC of 19 May
2001.

The Commission submits that the abovementioned directive
does in fact provide for the possibility of a flat-rate scheme for
small enterprises, but the definition of ‘small enterprise’ used
under Austrian rules — turnover in Austria of
less than
EUR 22 000 — does not correspond to the Community law
concept of ‘small enterprise’, which must be given a uniform
the
interpretation.
Austrian flat-rate scheme does not lead to a tax reduction
which exceeds the simplification measure which Article 24(1)
of the abovementioned directive aims to permit. The release
from the other invoicing and tax return obligations and the
duty to keep records further constitutes the formal aspect of
the oversimplification.

furthermore unproven that

remains

It

The Commission claims that the Austrian rules at issue cannot
be accepted on the basis of the abovementioned Council deci-
sion either. This decision does admittedly authorise the

(Case C-183/05)

(2005/C 182/42)

(Language of the case: English)

An action against Ireland was brought before the Court of
Justice of the European Communities on 22 April 2005 by the
Commission of the European Communities, represented by Mr
Michel Van Beek, acting as Agent, assisted by Maître Matthieu
Wemaëre, avocat, with an address for service in Luxembourg.

The applicant claims that the Court should:

— declare that, by limiting its transposition into Irish law of
the provisions of Article 12(2) and Article 13(1)(b) of Direc-
tive 92/43/EEC on the conservation of natural habitats and
of wild fauna and flora (1) to those species listed in Annex
IV of the Directive that occur in Ireland, Ireland has failed
to comply with the said Articles 12(2) and 13(1)(b) of this
Directive and with its obligation under the Treaty,

— declare that,

in failing to take all the necessary specific
measures to effectively implement
the system of strict
of Directive
by Article
required
protection
12(1)
92/43/EEC,
Ireland has failed to comply with the said
Article 12(1) of this Directive and with its obligation under
the Treaty,

— declare that, by retaining provisions of Irish legislation that
are inconsistent with the provisions of Articles 12(1) and
16 of Directive 92/43/EEC, Ireland has failed to comply
with the said Articles 12(1) and 16 of this Directive and
with its obligation under the Treaty,

— order Ireland to pay the costs.

23.7.2005

EN

Official Journal of the European Union

C 182/23

Pleas in law and main arguments

The Commission maintains that Ireland has failed to comply
with Directive 92/43/EEC on the following grounds:

under which the operator of an establishment where
dangerous substances are present may commence activity
without the authority which has to give its views on the
safety report having expressly communicated the conclu-
sions of its examination of the safety report to the operator,

— The transposition of Article 12(2) of Directive 92/43/EEC
(the Habitats Directive) in Irish law is incomplete in so far
as it prohibits the keeping, transport and sale or exchange,
and offering for sale or exchange of species listed in Annex
IV(a) of
those animal
species that occur in Ireland.

the Directive only in respect of

by maintaining in force legislation such as that contained in
Article 21(3) of legislative decree No 344 of 1999, under
which, where the measures the operator plans to adopt for
the prevention and mitigation of major accidents are
seriously deficient, the competent authority is not required
to prohibit commencement of activity;

— The implementation of Article 12(1) of the Directive in
Ireland is incomplete in so far as Ireland has not adopted all
the specific measures necessary to effectively establish a
system of strict protection for the animal species listed in
Annex IV(a) that are found in Ireland.

— The transposition of Articles 12(1) and 16 of the Directive
is incorrect because there exists a parallel regime of deroga-
tions that is incompatible with the scope of and the condi-
tions for the application of Article 16 and which leads to a
violation by Ireland of its obligation under Article 12(1) to
establish and maintain a system of strict protection for
animal species listed in Annex IV(a) of the Directive.

(1) OJ L 206, 22.07.1992, p. 7

by failing to adopt binding legislation providing for inspec-
tions which allow a planned and systematic examination of
technical, organisational and management systems applied
in the establishment in question, so as to ensure that the
operator can demonstrate that he has adopted adequate
measures in the light of the activities carried out by the
establishment,
to prevent any relevant accidents and to
ensure that the operator can demonstrate that he has appro-
priate means of limiting the consequences of accidents on
and off site,

by failing to adopt
legislation providing for inspections
which ensure that the data and information contained in the
safety report or any other report submitted adequately
reflect the conditions in the establishment,

the Italian Republic has failed to fulfil its obligations under
Article 9(4), Article 17(1) and the first, second and third
indents of Article 18(1) of Directive 96/82. (1)

Action brought on 26 April 2005 by the Commission of
the European Communities against the Italian Republic

2. order the Italian Republic to pay the costs.

(Case C-185/05)

(2005/C 182/43)

(Language of the case: Italian)

An action against the Italian Republic was brought before the
Court of Justice of the European Communities on 26 April
2005 by the Commission of the European Communities, repre-
sented by B. Schima and F. Amato, of its Legal Service.

The Commission claims that the Court should:

1. declare that:

by maintaining in force legislation such as that contained in
Article 9(3) and (4) of legislative decree No 344 of 1999,

Pleas in law and main arguments

Council Directive 96/82/EC of 9 December 1996 on the
control of major-accident hazards
dangerous
involving
the operator of an establishment
substances provides that
where dangerous substances are present is required to submit a
safety report to the competent authority. The Italian Republic
transposed that directive by legislative decree No 334 of 17
August 1999.

The Commission takes the view, first, that under Article 9(4) of
the directive the operator may not commence activity in the
absence of express authorisation from the competent authority.

the

legislative decree

to
However,
commence activity without the competent authority having
expressly communicated the conclusions of its examination of
the safety report to the operator.

the operator

allows