CELEX: C1997/271/06
Language: en
Date: 1997-09-06 00:00:00
Title: Action brought on 30 June 1997 by Ireland against the Commission of the European Communities (Case C-239/97)

C 271 /4                EN                  Official Journal of the European Communities                                   6 . 9 . 97
                JUDGMENT OF THE COURT                                    Action brought on 30 June 1997 by Ireland against the
                           ( Sixth Chamber)                                       Commission of the European Communities
                                                                                                ( Case C-239/97)
                            of 17 July 1997
                                                                                                  ( 97/C 271/06 )
  in Case C-190/95 (reference for a preliminary ruling from
  the Gerechtshof te Amsterdam ): ARO Lease BV v.
  Inspecteur van de Belastingdienst Grote Ondernemingen,
                             Amsterdam 0 )                               An action against the Commission of the European
                                                                         Communities was brought before the Court of Justice of
  (Sixth VAT Directive — Leasing company supplying                       the European Communities on 30 June 1997 by Ireland,
 passenger cars — Place where the supplier has established               represented by Mr Michael A. Buckley, Chief State
              its business — Fixed establishment)                        Solicitor, Agent for Ireland, assisted by Mr Paul Gallagher,
                             ( 97/C 271 /05 )                            SC, of the Bar of Ireland, and Ms Niamh Hyland, BL, of
                                                                         the Bar of Ireland, with an address for service in
                                                                         Luxembourg at the Embassy of Ireland, 28, route d'Arlon.
                  (Language of the case: Dutch)
                                                                         The Applicant claims that the Court should:
   (Provisional translation; the definitive translation will be
           published in the European Court Reports)
                                                                         — annul Commission Decision C(97) 693 of 16 April
                                                                             1997 concerning the reduction of assistance from the
 In Case C-190/95 : reference to the Court under Article 177                 European Regional Development Fund (hereafter
 of the EC Treaty from the Gerechtshof te Amsterdam, for                     'ERDF') to the operational programme for Tourism in
 a preliminary ruling in the proceedings pending before                      Ireland 1989—1993 within the Community support
 that court between ARO Lease BV and Inspecteur der                          framework for structural assistance under Objective 1
 Belastingdienst Grote Ondernemingen te Amsterdam — on                       in Ireland for the period 1989—1993 and amending
 the interpretation of Article 9 ( 1 ) of Sixth Council                      Decision C(89 ) 2258/7 of 21 December 1989 as last
 Directive 77/388/EEC of 17 May 1977 on the                                  amended by C(93 ) 3769 of 17 December 1993 ,
 harmonization 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 ) — the             — order the Commission to pay the costs of this
 Court ( Sixth Chamber ), composed of: G. F. Mancini,                        application.
 President of Chamber, J. L. Murray, C. N. Kakouris
 ( Rapporteur), P. J. G. Kapteyn and G. Hirsch, Judges; N.
Fennelly, Advocate General; H. A. Riihl, Principal                      Pleas in law and main arguments adduced in support:
Administrator, for the Registrar, has given a judgment on
 17 July 1997, in which it has ruled:
                                                                        Applicable law
 On a proper construction of Article 9 (1 ) of Sixth Council
Directive 77/388/EEC of 17 May 1977 on the                              The decision under which the monies for the project at the
harmonization of the laws of the Member States relating                 Burren National Park and the Wicklow National Park
to turnover taxes — Common system of value added tax:                   were awarded was Decision C(89 ) 2258/7 of 21 December
uniform basis of assessment, a leasing company                           1989 as last amended by Decision C(93 ) 3769 of
established in one Member State does not supply services                17 December 1993 . The applicant is seeking the
from a fixed establishment in another Member State if it                annulment of the Commission decision of 16 April 1997
makes passenger cars available in the second State under                which seeks to amend this decision. The applicant submits
leasing agreements to customers established there, if its               that it is clear that the relevant law applicable to the
customers have entered into contact with it through self­               present annulment action is Regulation ( EEC ) No 4253/
employed intermediaries established in the second State, if             88 ( M.
they have chosen their cars from dealers established in the
second State, if the leasing company has acquired the cars
in the second State, in which they are registered, and has              Substance
made them available to its customers under leasing
agreements drawn up and signed at its main place of
business, and if the customers bear maintenance costs and               i)  Lack of a significant change
pay road tax in the second State, but the leasing company
does not have an office or any premises on which to store
the cars there.                                                             The applicant submits that in view of the fact that the
                                                                            approval given by the sub-committee for Sub­
(') OJ C 208 , 12 . 8 . 1995 .                                              Programmes 1 and 2 of the Tourism Operational
                                                                            Programme was given in general terms to 'the creation
                                                                            of a national park' and that the work done at the
                                                                            Burren National Park is part of the creation of a
 ---pagebreak--- 6 . 9 . 97             1 EN |                Official Journal of the European Communities                                  C 271 /5
      national park, there is no significant change affecting           Action brought on 30 June 1997 by the Kingdom of Spain
      the nature or conditions of operation of the measure .                against Commission of the European Communities
      The Commission's decision reducing its assistance so
                                                                                              ( Case C-240/97 )
      that no monies spent by the Office of Public Works on
      the development at the Burren National Park were to                                       ( 97/C 271 /07)
      be treated as eligible European Regional Development
      Fund expenditure is therefore a breach of the
      provisions of Article 24 of Regulation ( EEC ) No 4253/
      88 and ought to be annulled.                                      An action against the Commission of the European
                                                                        Communities was brought before the Court of Justice on
ii ) Incorrect interpretation of Article 24                             30 June 1997 by the Kingdom of Spain, represented by
                                                                        Santiago Ortiz Vaamonde, Abogado del Estado, acting as
                                                                        Agent, with an address for service in Luxembourg at the
      Even if the Court does not accept that no significant             Spanish Embassy, 4—6 Boulevard Emmanuel Servais .
      change took place in relation to the development at
      the Burren National Park, the applicant submits in
      relation to both developments that the conditions for
      the reduction or suspension of assistance under                   The applicant claims that the Court of Justice should:
      Article 24 of Regulation ( EEC ) No 4253/88 have not
      been met since no irregularity took place and no sums
      were received unduly.                                             1 . annul Commission Decision 97/333/EC of 23 April
                                                                            1997 (') on the clearance of the accounts in respect of
in ) Force majeure                                                          the expenditure for 1993 financed by the EAGGF as
                                                                            regards the financial adjustments made in relation to
                                                                            export refunds for butter and meat and aid for the
      In the circumstances of the present case, the applicant               processing of fruit and vegetables .
      submits that it could not have sought the
      Commission's approval for any changes that took
      place since the projects as originally conceived were
      found to be in breach of Irish planning law by the                2 . order the Commission to pay the costs.
      Supreme Court of Ireland, who ordered work on the
      projects to cease until planning permission was
      obtained. Subsequently the planning permission                    Pleas in law and main arguments adduced in support:
      applications lodged were refused, in the case of the
      project in the Wicklow National Park, and withdrawn
      following that refusal, in the case of the project in the
      Burren National Park .                                            Export refunds for butter
      The applicant therefore submits that it could not have
      gone ahead with the original projects due to                      The adjustment concerns a sale of 1 550 tonnes of butter
      circumstances      outside    its control . Moreover     the      bound ultimately for Kaliningrad ( Russian Federation ).
      circumstances which caused non-performance of the                 The problem is one purely of fact. The Commission is
      projects as initially agreed were abnormal and                    withholding advance funds from Spain for lack of
      unforeseeable since the Office of Public Works had at             evidence that the butter was actually exported to a non­
       all time complied with what had been perceived to be             member country, owing to its poor quality.
      the applicable law in Ireland for circa 30 years.
iv) Breach of the duty of sincere cooperation                           The Spanish authorities regarded as more that sufficient
                                                                        the evidence produced by the exporter, since it documents
                                                                        the incidents affecting the cargo before it was finally
      The duty of sincere cooperation between the Member                discharged in a non-member country. It is impossible to
       States and the Community is a well established                   assess the Commission's evidence to the contrary because
      principle of Community law. The applicant submits                 it has produced none .
      that the Commission, by reducing the assistance due
       to Ireland under the Operational Programme, has
       breached this duty.
                                                                        Export refunds for beef and veal
 (') 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        Article 68 of the Community Customs Code ( Regulation
     different Structural Funds between themselves and with the         ( EEC ) No 2913/92 (2 )) provides for the examination or
     operations of the European Investment Bank and the other           physical checking of goods as an alternative, and not
     existing financial instruments .                                   exclusive, procedure for verifying the declarations
                                                                        accepted by the customs authorities, since at the same
                                                                        time it provides for documentary checks . Article 71 ( 1 ) of