Case C-248/08: Action brought on 9 June 2008 — Commission of the European Communities v Hellenic Republic
Date: 2008-06-09
Institutions: Court of Justice
Subjects: European Commission, Greece, action for failure to fulfil an obligation, animal product, by-product, health control, health legislation, waste management

15.8.2008

EN

Official Journal of the European Union

C 209/29

that establishment, must be able to use the normal deduction
mechanism provided for in the Sixth Directive, even if some
commercial transactions are effected directly from the place in
which that person is principally established.

(1) OJ 1979 L 331, p. 11.
(2) OJ 1986 L 326, p. 40.
(3) OJ 1977 L 145, p. 1 — Sixth Council Directive 77/388/EEC of
17 May 1977 on the harmonization of the laws of the Member
States relating to turnover taxes — Common system of value added
tax: uniform basis of assessment.

Action brought on 3 June 2008 — Commission of the
European Communities v Republic of Finland

(Case C-246/08)

(2008/C 209/43)

Language of the case: Finnish

the first subparagraph of Article 4(5) of the Sixth VAT Directive.
Those services are clearly free from value added tax where they
are provided without charge. If, on the other hand, the recipient
of legal aid pays a fee for the service, services provided by a
State legal aid office cannot be regarded as free from value
added tax.

The second subparagraph of Article 4(5) of the VAT Directive
provides that bodies governed by public law are to be regarded
as taxable persons in respect of the activities in which they
engage as public authorities if treating them differently would
lead to significant distortions of competition. Even if the State
legal aid offices were regarded as acting as public authorities in
this respect, the Commission considers that excluding them
from liability to tax in the above cases would lead to significant
distortions of competition. For that reason they should be
regarded as taxable persons with respect to value added tax.

(1) Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmo-
nisation of the laws of the Member States relating to turnover taxes
— Common system of value added tax: uniform basis of assessment
(OJ 1977 L 145, p. 1).

Parties

Action brought on 9 June 2008 — Commission of the
European Communities v Hellenic Republic

Applicant: Commission of the European Communities (repre-
sented by P. Aalto and D. Triantafyllou, acting as Agents)

Defendant: Republic of Finland

Form of order sought

— declare that, by failing to charge value added tax on legal
advice services provided in return for part payment
in
accordance with the legal aid provisions by State legal aid
offices (by public legal advisers acting as their employees),
while the corresponding services provided by private advi-
sers are subject to value added tax, the Republic of Finland
has failed to fulfil its obligations under Articles 2(1) and 4(1),
(2) and (5) of the Sixth VAT Directive 77/388/EEC (1);

(Case C-248/08)

(2008/C 209/44)

Language of the case: Greek

Parties

Applicant: Commission of the European Communities (repre-
sented by: E. Tserepa-Lacombe and A. Markoulli)

— order the Republic of Finland to pay the costs.

Defendant: Hellenic Republic

Pleas in law and main arguments

In Finland a recipient of legal aid may choose a public legal
adviser or a private adviser to represent him in legal proceed-
ings. In that situation the services provided by a public legal
adviser in return for part payment are not subject to value
added tax, whereas value added tax is charged on the services
provided by a private adviser in return for part payment. The
Commission considers that this is a case of different value
added tax treatment of the same services, with effects on the
Community's own resources.

Form of order sought

The Court is asked to:

— declare that the Hellenic Republic has failed to fulfil

its
obligations under Article 4(2)(a) and (c), Article 5(2)(c),
Article 6(2)(b) and Articles 10, 11, 12, 13, 14, 15, 17, 18
and 26 of Regulation (EC) No 1774/2002 (1) of the Euro-
pean Parliament and of the Council of 3 October 2002
laying down health rules concerning animal by-products not
intended for human consumption;

The Commission argues that the services provided by State legal
aid offices in legal proceedings do not fall within the scope of

— order the Hellenic Republic to pay the costs.

C 209/30

EN

Official Journal of the European Union

15.8.2008

Pleas in law and main arguments

By this action the Commission asks the Court to find that the
Hellenic Republic has failed to fulfil
its obligations under
Article 4(2)(a) and (c), Article 5(2)(c), Article 6(2)(b) and Arti-
cles 10, 11, 12, 13, 14, 15, 17, 18 and 26 of Regulation (EC)
No 1774/2002 of the European Parliament and of the Council
of 3 October 2002 laying down health rules concerning animal
by-products not intended for human consumption (‘the animal
It should be noted that this action
by-products regulation’).
concerns two sets of infringement proceedings (Infringements
2001/5217 and 2006/2221) which arose from breach of the
Hellenic Republic's obligations under specific articles of that
regulation.

apply the provisions of the by-products regulation, in particular
as regards the approval of waste processing plants, the FVO
inspectors repeatedly found, on-the-spot and until April 2007,
when the last fact-finding trip took place, that the Greek autho-
rities had not taken the requisite action to comply with the obli-
gations incumbent on them under the above-mentioned articles
of the by-products regulation.

It should also be pointed out that the non-implementation, or
inadequate implementation, of the above-mentioned articles is
due, to a large extent, to the ineffective coordination of the
competent authorities at the level of the prefectural administra-
tion. Furthermore, as is clear from the response of the Greek
authorities to the findings set out in the FVO's reports, the level
of the controls carried out by the competent authorities and of
the penalties imposed by the national legislation do not effec-
tively ensure the effective application of the by-products regu-
lation.

(1) OJ L 273 of 10.10.2002, p. 1.

In particular the regulation states that once animal waste is
collected, transported and identified without undue delay,
it
must, inter alia, be disposed of as waste, having been processed
in the ways provided for in the Regulation in accordance with
the category to which the waste belongs (Articles 4(2)(c), 5(2)(c)
and 6(2)(b)). Procedures are also laid down for the disposal of
specified risk material by incineration (Article 4(2)(a)). Further,
the animal by-products regulation lays down the conditions
governing the approval of waste processing plants, intermediate,
storage, incineration and co-incineration plants, Category 1 and
Category 2 processing plants, Category 2 and Category 3 oleo-
chemical
plants
plants
(Articles 10-15). Similarly, the animal by-products regulation
lays down the conditions governing the approval by the compe-
tent authorities of Category 3 material processing plants and the
approval of petfood plants and technical plants (Articles 17-18).
In addition, in accordance with the regulation, the competent
authority must carry out at regular intervals inspections and
supervision to ascertain that
the regulation's provisions are
being observed, on the basis of various criteria which are laid
down, and to take the appropriate action in the case of non-
compliance (Article 26).

composting

plants,

biogas

and

On the basis of a large number of reports drawn up by the
Commission's Food and Veterinary Office (FVO), the Commis-
sion points out that neither at the end of the time-limits laid
down in the reasoned opinion and in the supplementary
reasoned opinion nor after
those dates had the Hellenic
Republic taken all the requisite measures to correct the infringe-
ments with which it was charged and consequently to comply
with its obligations under the above-mentioned articles of the
by-products regulation.

Since 2004 the FVO has carried out a number of fact-finding
trips in Greece to ascertain what defects there are in the applica-
the by-products regulation. Despite ascertaining that
tion of
there had been some progress following the advice of the FVO
and the adoption of specific legislation in October 2006 which
aimed to introduce the requisite administrative measures to

Action brought on 10 June 2008 — Commission of the
European Communities v Italian Republic

(Case C-249/08)

(2008/C 209/45)

Language of the case: Italian

Parties

Applicant: Commission of the European Communities (repre-
sented by: K. Banks and C. Cattabriga, Agents)

Defendant: Italian Republic

Form of order sought

— Declare that:

— by failing to provide appropriate measures

the
control, inspection and surveillance of fishing activities
within its territory and within maritime waters subject
to its sovereignty or
in particular with
regard to compliance with the provisions governing the
retention on board and use of drift-nets, and

jurisdiction,

for