CELEX: C2002/219/15
Language: en
Date: 2002-09-14 00:00:00
Title: Case C-272/02: Action brought on 24 July 2002 by the Commission of the European Communities against the Council of the European Union

14.9.2002              EN                    Official Journal of the European Communities                                        C 219/9
Action brought on 24 July 2002 by the Commission of                     The Commission concludes that the object of the legislation in
the European Communities against the Council of the                     question is the completion of the internal market and that it
                        European Union                                  does not constitute a set of measures harmonising tax pro-
                                                                        visions. The correct legal base is thus Article 95 EC and not
                                                                        Article 93.
                         (Case C-272/02)
                                                                        (1 ) OJ L 128, 15.5.2002, p. 1.
                         (2002/C 219/15)                                (2 ) of 27 January 1992 (OJ L 24, 1.2.1992, p. 1).
An action against the Council of the European Union was
brought before the Court of Justice of the European Communi-
ties on 24 July 2002 by the Commission of the European
Communities, represented by Richard Lyal, acting as agent,              Action brought on 24 July 2002 by European Parliament
with an address for service in Luxembourg.                                           against Council of the European Union
                                                                                                 (Case C-273/02)
The Applicant claims that the Court should:
                                                                                                 (2002/C 219/16)
1)    declare that Council Regulation (EC) No 792/2002 ( 1) of
      7 May 2002 amending temporarily Regulation (EEC)
      No 218/92 (2) on administrative cooperation in the field
      of indirect taxation (VAT) as regards additional measures
      regarding electronic commerce is void;                            An action against the Council of the European Union was
                                                                        brought before the Court of Justice of the European Communi-
                                                                        ties on 24 July 2002 by the European Parliament, represented
2)    maintain the effects of the regulation until the entry into
                                                                        by Ch. Pennera and A. Neergaard, acting as Agents, with an
      force of a regulation adopted on the correct legal basis;
                                                                        address for service in Luxembourg.
3)    order the Council of the European Union to pay the costs.
                                                                        The applicant claims that the Court should:
                                                                        1.     annul Council Regulation (EC) No 792/2002 of 7 May
                                                                               2002 amending temporarily Regulation (EEC) No 218/
Pleas in law and main arguments                                                92 on administrative cooperation in the field of indirect
                                                                               taxation (VAT) as regards additional measures regarding
                                                                               electronic commerce ( 1);
The Commission submits that Council Regulation (EC)
No 792/2002 has been adopted on an incorrect legal basis, in            2.     maintain the effects of the annulled regulation until the
                                                                               European Parliament and the Council adopt, on the
disregard of the prerogatives of the European Parliament.
                                                                               proper legal basis, a new regulation;
                                                                        3.     order the defendant to pay the costs.
In the view of the Commission the expression ‘fiscal provisions’
as used in Article 95(2) EC 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. That logic does not, the Commission                    Pleas in law and main arguments
submits, 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        Breach of essential procedural requirements and infringement
substance of Member State’s own tax rules do not impinge on             of the EC Treaty: the contested regulation should have been
the tax jurisdiction of the Member States. Such measures                based on Article 95 EC. The language of Article 93 EC
therefore do not fall within the justification advanced for the         ‘harmonisation of legislation concerning ... taxes’ indicates that
exclusion of ‘fiscal provisions’ from the Article 95(1) EC              that provision refers to substantive tax law. Articles 93
derogation, for there is no interference with the right and the         and 95(2) EC must, as lex specialis, be interpreted restrictively.
ability of each Member State to organise its tax system as it           Administrative cooperation measures have no effect on sub-
wishes.                                                                 stantive tax law, which is a matter which falls within the