CELEX: C2003/135/32
Language: en
Date: 2003-06-07 00:00:00
Title: Case C-182/03: Action brought on 28 April 2003 by the Kingdom of Belgium against the Commission of the European Communities

7.6.2003                EN                        Official Journal of the European Union                                          C 135/21
Action brought on 15 April 2003 by the Commission of                      treaty. The same is true of the content of the framework
the European Communities against the Council of the                       decision. The matters which Articles 2 and 3 of the framework
                          European Union                                  decision require Member States to regard as environmental
                                                                          offences refer, for the most part, to actions covered by
                                                                          Community law.
                          (Case C-176/03)
                          (2003/C 135/31)                                 Article 47 of the Treaty on European union lays down the
                                                                          primacy of Community provisions and it is therefore not
                                                                          legally possible to adopt acts on the basis of that treaty if there
                                                                          is Community competence to do so.
An action against the Council of the European Union was
brought before the Court of Justice of the European Communi-              The Commission also claims that the Communities have
ties on 15 April 2003 by the Commission of the European                   competence to require the Member States to impose criminal
Communities, represented by J.-F. Pasquier and W. Bog-                    penalties where that is necessary in order to guarantee the
ensberger, acting as Agents, with an address for service in               effect and efficacy of Community law.
Luxembourg.
                                                                          In that regard, the Commission submits, first, that according
The Commission of the European Communities claims that                    to settled case-law of the Court of Justice, as set out for
the Court should:                                                         example in Case 68/88 Commission v Greece [1989] ECR
                                                                          2966, the Member States must ensure that infringements
—     declare that the Council Framework Decision of 27 Janu-             of Community law are penalised under conditions, both
      ary 2003 on the protection of the environment through               procedural and substantive, which are analogous to those
      criminal law ( 1) is unlawful;                                      applicable to infringements of national law of a similar
                                                                          nature and importance and which make the penalty effective,
                                                                          proportionate and dissuasive. The Member States may there-
—     annul that framework decision;
                                                                          fore be required to provide criminal penalties for infringements
                                                                          of Community law. The Community measure may even itself
—     order the Council of the European Union to pay the costs.           define the types of penalties which the Member States may
                                                                          establish (see, for example, Article 31 of Council Regulation
                                                                          (EEC) No 2847/93 of 12 October 1993 establishing a control
                                                                          system applicable to the common fisheries policy ( 2).
Pleas in law and main arguments
                                                                          The Commission observes, next, that as Community law
The action is based on Article 35(6) of the Treaty on European            currently stands, if the Community legislature considers that
Union.                                                                    compliance with the rules which it lays down can be guaran-
                                                                          teed only by the imposition of criminal penalties, it has power
                                                                          to require the Member States to provide for such penalties.
The Commission unreservedly supports the objectives of the
framework decision but disputes the legal basis adopted in
                                                                          (1 ) Framework Decision 2003/80/JHI, OJ L 29, 5.2.2003, p. 55.
order to provide for the measures in question, namely the
                                                                          (2 ) OJ L 261, 20.10.1993, p. 1.
Treaty on European Union and in particular Articles 29, 31(e)
and 34(2)(b) of that treaty. The measures in question are
clearly matters of Community competence. The choice of
legal basis is important in this case because of the special
institutional features of Title VI of the Treaty on European
Union which, inter alia, does not have any equivalent to the
infringement procedure.
                                                                          Action brought on 28 April 2003 by the Kingdom
                                                                          of Belgium against the Commission of the European
The choice of legal basis of an act must, according to the case-                                    Communities
law, be based on objective criteria that are susceptible to
judicial review, as regards in particular the purpose and content                                 (Case C-182/03)
of the act.
                                                                                                  (2003/C 135/32)
In the present case, both the purpose and the content of
the framework decision manifestly fall within the scope of
Community competencies. The aim of the framework decision                 An action against the Commission of the European Communi-
is to protect the environment by imposing penalties on                    ties was brought before the Court of Justice of the European
infringements adversely affecting it, which corresponds to                Communities on 28 April 2003 by the Kingdom of Belgium,
Community competencies such as those referred to in Title XIX             represented by A. Snoecx, acting as Agent, assisted by P. Kelley,
of the EC Treaty (Articles 174 to 176) and by Article 6 of that           B. van der Walle de Ghelcke and J. Wouters, avocats.
 ---pagebreak--- C 135/22              EN                        Official Journal of the European Union                                         7.6.2003
The Kingdom of Belgium claims that the Court should:                    Second plea: infringement of Article 88(2) of the EC Treaty
                                                                        and infringement of the principle of legitimate expectation
—     annul the decision of the Commission of the European              resulting from the Council Decision on the code of conduct.
      Communities C(2003) final of 17 February 2003 con-
      cerning the aid scheme implemented by the Kingdom of              A code of conduct for business taxation was adopted by
      Belgium in favour of coordination centres established in          resolution of the Council and representatives of governments
      Belgium, inasmuch as it does not authorise Belgium to             of the Member States, meeting within the Council, on 1 Decem-
      grant, even temporarily, renewal of coordination centre           ber 1997. With regard to the 66 taxation measures covered by
      status to the coordination centres which benefited from           the code of conduct, including the coordination centres
      the scheme as at 31 December 2000;                                scheme, the ECOFIN Council of 26 and 27 November 2000
                                                                        decided that, as regards undertakings benefiting from a harmful
—     order the Commission to pay the costs.
                                                                        regime on 31 December 2000, the effects of those regimes
                                                                        would expire at the latest on 31 December 2005, whether
                                                                        they are regimes granted for a fixed period or not. Lastly, on
Pleas in law and main arguments                                         21 January 2003 agreement in principle was made within the
                                                                        Council relating to the application of the code of conduct
                                                                        which provides in particular that the coordination centres
First plea: infringement of Article 88(2) of the EC Treaty,
                                                                        which benefited from the regime on 31 December 2000 could
infringement of the principle of legal certainty, of the protec-        continue to benefit fully from their authorisation for the 10-
tion of legitimate expectations and of proportionality in that
                                                                        year period under way and until 31 December 2010 at the
the Commission did not allow a reasonable period for the                latest.
Belgian State and the coordination centres whose individual
authorisations expire before 31 December 2010; more specifi-
cally in the months following the notification of the decision.         The contested decision prohibits renewal of authorisations
                                                                        expiring after the notification of the decision and therefore
Article 2 of the decision requires the Belgian State to repeal          infringes the legitimate expectations of both the Belgian State
                                                                        and of the coordination centres with regard to the extension
the tax regime for the coordination centres or to amend it so
as to make it compatible with the common market and                     of existing authorisations until 31 December 2010.
Article 3 of the decision fixes a period of two months within
which to take the measures necessary to comply with that
obligation. That period is manifestly insufficient, as the scheme       Third plea: infringement of the principle of equal treatment.
in question can be amended only by a formal law adopted by
the Parliament. The Commission thus infringes Article 88(2)             The system adopted by the Commission introduces unjustifia-
of the EC Treaty, which, according to the case-law, is based on         ble discrimination between the situation of centres whose
the notion of cooperation between the Member State and the              approval has been renewed shortly before 31 December 2000
Commission. The requirement for a reasonable period applies             and who benefit from the regime until 2010 and centres
all the more in a case such as this where the scheme in                 whose authorisation will expire in 2003 and which lose the
question, notified in the 1980s, had not been considered by             benefit of the regime because of an expiration date of only a
the Commission to constitute an aid.                                    few months.
Nor is the period reasonable for the coordination centres. The
authorisations are for 10 years and are renewable on the sole           Fourth plea: infringement of the obligation to state reasons.
condition that the centre continues to comply with the
conditions laid down by the rules. The recitals of the decision         The Commission does not give reasons that are adequate in
recognise that there is a need to protect the legitimate                law to explain why it has not provided a transitional period
expectation of existing coordination centres, but the decision          for centres whose authorisation expires shortly after the date
prohibits any renewal of approvals, even for those which                of the decision. Lastly, the decision is wholely deficient in
expire in the months following notification of the decision.            regard to the failure to take into account, for implementation
For a number of the centres concerned, the decision entails the         of transitional measures, of the period from 1 January 2001 to
immediate cessation of their activities.                                16 February 2003.