CELEX: C2003/200/31
Language: en
Date: 2003-08-23 00:00:00
Title: Case C-271/03: Action brought on 21 June 2003 by Ireland against the Commission of the European Communities

23.8.2003             EN                         Official Journal of the European Union                                         C 200/17
Does subparagraph (a) of the first paragraph of Article 13C of           As regards hazardous waste transported directly by its
the Sixth Council Directive (77/388/EEC) of 17 May 1977 on               producer, the same provision of the Italian decree establishes
the harmonisation of the laws of the Member States relating to           a further exemption from the requirement of registration in
turnover taxes — Common system of value added tax (1),                   the register referred to above, which applies to undertakings
permit a Member State which has exercised the power to allow             that transport less than 30 litres or 30 kg of waste per day.
taxpayers a right of option for taxation in cases of letting and
leasing of immovable property to make full deduction of the
input VAT conditional upon non-retroactive approval of the tax           In sum, the requirement in question is limited to the collection
authorities first being obtained?                                        and transportation of hazardous waste, except in cases where
                                                                         the collection or transportation of such waste is carried out by
                                                                         its producer in quantities below a certain daily limit, and to
(1) OJ L 145, 13.06.1977, p. 1.                                          the collection and transportation of non-hazardous waste on
                                                                         behalf of others.
                                                                         That is clearly inconsistent with the directive. According to
                                                                         Article 12 of the directive, all undertakings, without distinc-
                                                                         tion, which on a professional basis collect or transport waste
                                                                         of any kind, whether hazardous or non-hazardous, must,
                                                                         where not subject to authorisation, be registered with the
Action brought on 23 June 2003 by the Commission of                      competent authorities.
   the European Communities against the Italian Republic
                                                                         (1) OJ L 194, 25.07.1975, p. 39.
                                                                         (2) OJ L 78, 26.03.1991, p. 32.
                          (Case C-270/03)
                          (2003/C 200/30)
An action against the Italian Republic was brought before the
Court of Justice of the European Communities on 23 June
2003 by the Commission of the European Communities,                      Action brought on 21 June 2003 by Ireland against the
represented by L. Visaggio and R. Amorosi, acting as Agents.                      Commission of the European Communities
The applicant claims that the Court should:
                                                                                                   (Case C-271/03)
—     declare that, by permitting undertakings, under
      Article 30(4) of Legislative Decree No 22, of 5 February                                     (2003/C 200/31)
      1997, as amended by Law No 426, of 9 December 1998,
      to collect and transport their own non-hazardous waste,
      as an ordinary activity, without requiring them to be
      registered in the national register of undertakings carrying       An action against the Commission of the European Commu-
      out waste disposal services, and, in addition, by permit-          nities was brought before the Court of Justice of the European
      ting undertakings to transport their own hazardous waste           Communities on 21 June 2003 by Ireland, represented by
      in quantities of less than 30 kg and 30 litres per day,            D.J. O'Hagan, acting as agent, assisted by P. Gallagher SC,
      without requiring them to be entered in that register, the         P. McGarry, Barrister and J. Buttimore of the Office of the
      Italian Republic has failed to fulfil its obligations under        Attorney General, with an address for service in Luxembourg.
      Article 12 of Directive 75/442/EEC (1) on waste, as
      amended by Directive 91/156/EEC (2);
                                                                         The Applicant claims that the Court should:
—     order the Italian Republic to pay the costs.
                                                                         a)    declare the action admissible;
                                                                         b)    annul Commission Decision C(2003)1084 reducing assis-
                                                                               tance granted from the European Regional Development
Pleas in law and main arguments                                                Find (ERDF) to the Global Grant Scheme for Private
                                                                               Sector Tourism and Development, Operational Programme
                                                                               for Tourism (1989-1993) sub-programme 2, in Ireland
As regards non-hazardous waste, Article 30(4) of the Legisla-                  under Commission Decision C89(2258/7) of 21 December
tive Decree expressly exempts undertakings which, on their                     1989;
own account, collect and transport non-hazardous waste in
the course of their particular occupational activities from the
requirement of registration in the national register of under-           c)    order the Commission to bear the costs of the proceed-
takings carrying out waste disposal services.                                  ings.
 ---pagebreak--- C 200/18                 EN                        Official Journal of the European Union                                            23.8.2003
Pleas in law and main arguments                                            not developed until several years after the conclusion of the
                                                                           projects in issue in circumstances where the procedures used
                                                                           were at all times in accordance with best practice at the time
The Applicant submits that Commission Decision                             as approved by the Commission amounts to a retrospective
C(2003)1084 should be annulled on the following grounds:                   application of Community rules by the Commission.
I. Manifest error of approach or assessment by the Commis-                 IV. Breach of the principle of proportionality and/or the
    sion                                                                         principles in relation to the imposition of penalties
a)      The Irish Authorities do not accept the validity of the            The Commission clearly had available alternatives to the deci-
        extrapolation exercise purportedly carried out by the              sion adopted in this case. The approach adopted by the
        Commission and submit that extrapolation is not an                 Commission is out of all proportion to the result intended to
        acceptable methodology for establishing a monetary                 be achieved having regard to the ongoing efficacy of the
        repayment value in the case of very broadly-based grant            projects in issue and the nature of the project beneficiary.
        schemes such as the Operational Programme for Tourism,             Such an approach effectively amounts to the imposition of a
        1989 — 1993. Further, it is submitted that the Commis-             penalty in circumstances where there is no evidence of any
        sion has failed to identify the legal basis on which the           wrongdoing on the part of any undertaking or authority.
        extrapolation exercise it has purported to carry out is
        based.
                                                                           (1) Council Regulation (EEC) No 4253/88 of 19 December 1988,
                                                                               laying down provisions for implementing Regulation (EEC)
                                                                               No 2052/88 as regards coordination of the activities of the
b)      The application by the Commission of its own definition                different Structural Funds between themselves and with the opera-
        of the meaning of the terms of Article 23 of Regulation                tions of the European Investment Bank and the other existing
        4253/88 (1) in a manner that permits it to extend the                  financial instruments OJ L 374, 31.12.1988, p. 1-14.
        scope of its powers amounts to an infringement of the
        express provisions of that article and constitutes a mani-
        fest error of assessment on the part of the Commission in
        the exercise of its discretion pursuant to Article 24
        thereof.
c)      It is manifestly erroneous of the Commission to seek to
        justify imposing a penalty on Ireland on the basis of
        Datasheets, published in April 1997, several years after           Action brought on 24 June 2003 by the Commission of
        the Programme finished on the basis that they represented                     the European Communities against Ireland
        a codification of previously established practice, when this
        general practice had not been established by either the
        Commission or the European Court of Auditors in their                                          (Case C-274/03)
        monitoring of the Programme.
                                                                                                       (2003/C 200/32)
d)      It is furthermore submitted that the Commission was
        manifestly wrong in concluding that there were errors or
        risks inherent in the reporting system developed by the
        Irish authorities.                                                 An action against Ireland was brought before the Court of
                                                                           Justice of the European Communities on 24 June 2003 by the
                                                                           Commission of the European Communities, represented by
II. Infringement of a fundamental rule of law relating to the              Mr Georges Zavvos, acting as agent, with an address for service
     implementation of the Treaty                                          in Luxembourg.
In exercising its discretion pursuant to Article 24 of Regulation          The Applicant claims that the Court should:
4253/88, the Commission misdirected itself or was wrong in
law in failing to take account of the matters pleaded in the
application. The Commission approach is in breach of the                   1)     declare that, by failing to adopt the laws, regulations and
provisions of inter alia, articles 23 and 24 of Regulation                        administrative provisions necessary to comply with Direc-
4253/88.                                                                          tive 2000/26/EC of the European Parliament and of the
                                                                                  Council of 16 May 2000 on the approximation of the
                                                                                  laws of the Member States relating to insurance against
                                                                                  civil liability in respect of the use of motor vehicles and
III. Failure to respect the principles of non-retrospectivity,                    amending Council Directives 73/239/EEC and 88/357/EEC
      legal certainty, and legitimate expectation                                 (Fourth motor insurance Directive), published in the Offi-
                                                                                  cial Journal L 181, 20.07.2000, p. 65-74, or in any event
                                                                                  by failing to communicate them to the Commission,
The retrospective application of standards for financial manage-                  Ireland has failed to fulfil its obligations under the Direc-
ment, and in particular the issue of eligibility criteria, that were              tive;