CELEX: C2004/059/15
Language: en
Date: 2004-03-06 00:00:00
Title: Case C-533/03: Action brought on 19 December 2003 by the Commission of the European Communities against the Council of the European Union

6.3.2004                EN                      Official Journal of the European Union                                            C 59/9
Furthermore, there are no legal measures in place in the                According to the second paragraph of Article 95 EC, the
federal Land of North Rhine-Westphalia for ensuring that an             derogation from Article 94 contained in Article 95, para-
environmental impact assessment will be carried out if, under           graph 1, shall not apply to fiscal provisions. In the view of
the law of that Land, it is to be anticipated that a road               the Commission, the expression ‘fiscal provisions’ is to be
construction project will have a significant impact on the              understood as including rules on taxable persons, taxable
environment.                                                            events, basis of taxation, rates and exemptions, along with the
                                                                        detailed rules on assessment and enforcement. Conversely, the
                                                                        Commission submits that that logic does not extend to mutual
(1) OJ 1985 L 175, p. 40.                                               assistance in tax matters. Measures of cooperation, verification
(2) OJ 1997 L 73, p. 5.                                                 and information whose purpose is to facilitate the elimination
                                                                        of frontiers without affecting the substance of Member States’
                                                                        own tax rules do not impinge on the tax jurisdiction of
                                                                        Member States.
                                                                        The Commission submits that the provisions of Regulation
Action brought on 19 December 2003 by the Commission                    1798/2003 cannot properly be regarded as effecting a harmon-
of the European Communities against the Council of the                  isation or approximation of national tax rules. Regulation
                         European Union                                 1798/2003 is concerned solely with the exchange of infor-
                                                                        mation in relation to transactions which take place across
                                                                        frontiers within the Community, in order to enable national
                         (Case C-533/03)                                tax authorities to cooperate with each other and with the
                                                                        Commission to ensure compliance with the law on VAT in the
                                                                        absence of frontier controls. It does not affect any rules which
                          (2004/C 59/15)                                are properly to be regarded as ‘fiscal provisions’ within the
                                                                        meaning of Article 95(2) EC or ‘legislation concerning turnover
                                                                        taxes’ within the meaning of Article 93 EC.
An action against the Counci of the European Union was
brought before the Court of Justice of the European Communi-
ties on 19 December 2003 by the Commission of the European              For its part, Directive 2003/93 amends Directive 77/799 solely
Communities, represented by R. Lyal, acting as agent, with an           by the deletion of value added tax and the insertion of taxes
address for service in Luxembourg.                                      on insurance premiums. It does not affect the nature of that
                                                                        directive, which concerns the exchange of information and
                                                                        thus does not constitute the harmonisation of ‘fiscal provisions’
The Applicant claims that the Court should:                             within the meaning of Article 95(2) EC.
1.    declare that Council Regulation (EC) No 1798/2003 of
      7 October 2003 on administrative cooperation in the
      field of value added tax and repealing Regulation (EEC)
      No 218/92 (1) and Council Directive 2003/93/EC of                 It must therefore be concluded that the object of the legislation
      7 October 2003 amending Council Directive 77/799/                 in question is the completion of the internal market. It does
      EEC concerning mutual assistance by the competent                 not constitute a set of measures harmonising tax provisions.
      authorities of the Member States in the field of direct and       The correct legal base is thus Article 95 EC.
      indirect taxation (2) are void;
2.    maintain the effects of these measures until the entry into
      force of legislation adopted on the correct legal basis;          The Commission accordingly submits that Council Regulaton
                                                                        (EC) No 1798/2003 and Council Directive 2003/93/EC were
3.    order the Council of the European Union to pay the costs.         adopted on an incorrect legal basis, in disregard of the
                                                                        prerogatives of the Parliament.
Pleas in law and main arguments
                                                                        (1) OJ L 264, 15.10.2003, p. 1.
                                                                        (2) OJ L 264, 15.10.2003, p. 23.
The issue in this case is whether Articles 93 and 94 on the one
hand or Article 95 EC on the other is the correct legal basis
for the adoption of a measure such as Regulation 1798/2003
and Directive 2003/93.