CELEX: C2002/219/16
Language: en
Date: 2002-09-14 00:00:00
Title: Case C-273/02: Action brought on 24 July 2002 by European Parliament against 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
 ---pagebreak--- C 219/10               EN                    Official Journal of the European Communities                                       14.9.2002
purview of the Member States. However, the contested regu-              Action brought on 30 July 2002 by the Commission of
lation concerns, as evidenced by its title, exclusively adminis-         the European Communities against the French Republic
trative cooperation in the field of indirect taxation (VAT) in
the internal market and not the VAT system properly speaking.
                                                                                                 (Case C-280/02)
( 1) OJ 2002 L 128, p. 1.
                                                                                                 (2002/C 219/18)
                                                                        An action against the French Republic was brought before the
                                                                        Court of Justice of the European Communities on 30 July
Action brought on 29 July 2002 by the Kingdom of Spain                  2002 by the Commission of the European Communities,
   against the Commission of the European Communities                   represented by M. Nolin, acting as Agent, with an address for
                                                                        service in Luxembourg.
                          (Case C-276/02)
                                                                        The Commission of the European Communities claims that
                          (2002/C 219/17)                               the Court should:
                                                                        —     Declare that, by not identifying certain areas as sensitive
An action against the Commission of the European Communi-                     areas with respect to eutrophication, in the catchment
ties was brought before the Court of Justice of the European                  areas of Seine-Normandie, Loire-Bretagne, Artois-Picardie
Communities on 29 July 2002 by the Kingdom of Spain,                          and Rhône-Méditerranée-Corse, and not subjecting to
represented by Santiago Ortiz Vaamonde, Abogado del Estado,                   more stringent treatment discharges of urban waste water
with an address for service in Luxembourg at the Spanish                      from agglomerations with a population equivalent (p.e.)
Embassy, 4-6 boulevard E. Servais.                                            of more than 10 000 into sensitive areas or areas which
                                                                              should have been identified as sensitive, the French
                                                                              Republic has failed to fulfil its obligations pursuant to
The applicant claims that the Court should:                                   Article 5(1) and (2) of and Annex II to Directive 91/271/
                                                                              EEC (1);
—     declare the decision of the Commission of 14 May 2002
      null and void in so far as the Commission therein declared        —     Order the French Republic to pay the costs.
      that the continued failure of GEA (Grupo de Empresas
      Álvarez) to pay taxes and social security contributions
      amounts a grant of State aid incompatible with the
      common market, and
                                                                        Pleas in law and main arguments
—     order the defendant institution to pay the costs.
                                                                        —     Incomplete identification of sensitive areas: The French
                                                                              authorities wrongly limited themselves to identifying
                                                                              bodies of water where they consider eutrophication to be
Pleas in law and main arguments                                               established; they thus did not take account of the
                                                                              obligation also to identify as sensitive, in accordance with
                                                                              Annex II to the Directive, bodies of water ‘which in the
The only thing that has happened is the liquidation of an                     near future may become eutrophic if protective action is
undertaking in crisis, preceded by a general procedure for the                not taken’. For that reason, or because eutrophication
suspension of payments. That procedure, initiated and directed                should already have been identified, the Commission
by the court, enables creditors to reach agreements with the                  considers that the French Republic has failed to identify,
debtor undertaking which, in comparison with an immediate                     in breach of its obligations pursuant to Article 5(1) of
liquidation, increase the likelihood of the undertaking’s recov-              and Annex II to the Directive:
ery and the payment of some of its debts. The same procedure
for the suspension of payments may, of course, be sought
and obtained by any competing undertakings which bring                        —     in Seine-Normandie: the Seine bay, the Seine and its
complaints, should they to find themselves in a situation of                        tributaries downstream from its confluence with the
cessation of payments. The Commission has thus failed to                            Andelle;
demonstrate that there has been any State aid subject to
Article 87 EC.
                                                                              —     in Loire-Bretagne: Lorient harbour, the Elorn estuary,
                                                                                    the bay of Douarnenez, Concarneau bay, the Gulf of
                                                                                    Morbihan, the bay of Vilaine and the Sèvre-Niortaise;