CELEX: C2004/047/28
Language: en
Date: 2004-02-21 00:00:00
Title: Case C-512/03: Reference for a preliminary ruling by the Gerechthof Herzogenbusch by order of that Court of 4 December 2003 in the case of J.E.J. Blanckaert against Inspecteur van de Belastingdienst/Particulieren/Ondernemingen Buitenland te Heerlen

21.2.2004               EN                         Official Journal of the European Union                                               C 47/17
Pleas in law and main arguments                                            Even if an environmental impact assessment is carried out at
                                                                           the outline planning stage, it may be inadequate because it is
                                                                           based on the information provided in the outline planning
                                                                           application which may be insufficient to evaluate the effects of
                                                                           the development as a whole on the environment. Thus, the
The White City Development                                                 impact assessment will be carried out on an incomplete basis.
                                                                           (1) OJ 1985 L 175, p. 40.
The Commission submits that the competent authority could                  (2) OJ 1997 L 73, p. 5.
not reasonably have reached the conclusion that an impact
assessment was unnecessary when it based such a conclusion
principally or solely on the fact that the land in question had
been previously developed. That criterion for excluding the
need of an impact assessment is an innovation of Government
Circular 15/68. Directive 85/337/EEC contains no such test
and it is submitted that, by relying on a ground for excluding an
impact assessment which is not found in the aforementioned
                                                                           Reference for a preliminary ruling by the Gerechthof
Directive, the United Kingdom has failed to apply Articles 2(1)
                                                                           Herzogenbusch by order of that Court of 4 December
and 4(2) of that Directive correctly in the case of the proposed
                                                                           2003 in the case of J.E.J. Blanckaert against Inspecteur van
urban development project at White City.
                                                                           de Belastingdienst/Particulieren/Ondernemingen Buiten-
                                                                                                     land te Heerlen
                                                                                                    (Case C-512/03)
The Crystal Palace Development
                                                                                                      (2004/C 47/28)
The Commission maintains that, by not requiring an impact
assessment for the Crystal Palace development, the United
Kingdom has exceeded its margin of discretion under Directive              Reference has been made to the Court of Justice of the
85/377/EEC. The Commission submits that the margin of                      European Communities by order of the Gerechthof Herzogen-
discretion afforded a Member State under Article 4(2) of the               busch of 4 December 2003, received at the Court Registry on
Directive is not unlimited. The limits of that discretion are              8 December 2003, for a preliminary ruling in the case of
circumscribed by Article 2(1) of the Directive — i.e. an impact            J.E.J. Blanckaert against Inspecteur van de Belastingdienst/
assessment is required where a project, by virtue of its size,             Particulieren/Ondernemingen Buitenland te Heerlen on the
nature or location, is likely to have significant environmental            following questions:
effects. The Commission submits that, according to those
criteria, the project is likely to have such effects.                      1.     Is a foreign taxpayer, who is a resident of a Member State
                                                                                  and does not receive any income from employment in
                                                                                  the Netherlands, but only from savings and investments,
                                                                                  and who is therefore not obliged to pay, and does not
                                                                                  pay, any social security contributions to the Netherlands
Multi-stage procedure governing applications for planning                         national insurance schemes, entitled under EC law to
permission                                                                        Netherlands tax credits for national insurance schemes
                                                                                  (general old-age insurance, general insurance for depend-
                                                                                  ants and general insurance against special medical
                                                                                  expenses) in the calculation of his taxable income from
The Commission does not question the legality of dividing the                     savings and investments, in the case where resident
planning process into two stages per se, but submits that the                     taxpayers are entitled to those tax credits in the calculation
manner in which planning authorisation is actually divided                        of their taxable income from savings and investments
into two stages in the United Kingdom leads to results which                      because they are regarded as insured and as obliged to
are incompatible with Directive 85/337/EEC.                                       pay social security contributions to the Netherlands
                                                                                  national insurance schemes, even if they do not receive
                                                                                  any income in the Netherlands from employment, but
A large urban development project may escape assessment at                        only from savings and investments, and for that reason
the outline planning stage and no impact assessment is                            do not pay any social security contributions in the
possible (under English law) at the second, reserved matters                      Netherlands either?
stage. Consequently, a large urban development project which
is likely to have significant effects on the environment is not            2.     In answering the first question, is it relevant that the
considered as a whole but in separate parts. The practical result                 foreign taxpayer in question earns in excess of or less
is that the likely effects on the environment are not considered                  than 90 % of his family income in the Netherlands? In
in the light of the project as a whole.                                           particular:
 ---pagebreak--- C 47/18                EN                       Official Journal of the European Union                                          21.2.2004
     —     Is the Schumacker test for residents and non-                      —     by requiring, in connection with the rules applicable
           residents applicable only in the case of subjective or                   to foreign registrations, that private security firms
           person-related tax aspects, such as the right to a                       should:
           personal or family-related tax-free allowance, or
           does it also apply to non-person-related tax aspects,                    (a)  be a legal person in every particular case,
           such as the tax rate?
                                                                                    (b) possess a particular amount of share capital,
     —     When deciding whether to treat a non-resident as a                            regardless of the fact that those firms are not
           resident, are Member States allowed to apply a                                subject to the same obligations in the State of
           quantitative rule (such as the 90 % rule), despite the                        their establishment;
           fact that this does not guarantee that all discrimi-
           nation will be removed?
                                                                                    (c)  lodge security at the Caja General de Depósitos,
                                                                                         regardless of the fact that security may have
3.   Is the right of option as referred to in Article 2.5 of the                         been paid in the Member State of origin,
     Wet IB 2001 an adequate procedural remedy which
     ensures that the party concerned may make use of his
                                                                                    (d) have a minimum number of employees;
     rights as guaranteed under the EC Treaty and rules out all
     forms of discrimination?
                                                                              —     by requiring the employees of a foreign private
     If so, is this also an adequate remedy in the present case                     security firm to obtain a new specific permit in
     where the party concerned only receives income from                            Spain when they have already obtained a compar-
     savings and investments, given that the party concerned                        able permit in the State of that firm’s establishment;
     is unable to benefit from the right of option, as has been                     and by not making occupations in the field of
     considered under 4.3?                                                          private security subject to the Community rules on
                                                                                    the recognition of professional qualifications,
                                                                              the Kingdom of Spain has failed to fulfil its obligations
                                                                              under Articles 43 and 49 of the EC Treaty and under
                                                                              Directives 89/48/EEC (1) and 92/51/EEC (2) and
                                                                        2.    Order the Kingdom of Spain to pay the costs.
Action brought on 8 December 2003 by the Commission
of the European Communities against the Kingdom of
                               Spain                                    Pleas in law and main arguments
                         (Case C-514/03)                                The Spanish legislation concerning private security services
                                                                        contravenes Community legislation, more particularly
                                                                        Articles 43 and 49 of the EC Treaty, and also, in connection
                          (2004/C 47/29)                                with recognition of professional qualifications, Directives 89/
                                                                        48/EEC and 92/51/EEC.
                                                                        Undertakings that wish to carry out private security activities
An action against the Kingdom of Spain was brought before               on Spanish soil must be authorised to do so by registering
the Court of Justice of the European Communities on 8 Decem-            with the Ministry of the Interior, which authorisation is granted
ber 2003 by the Commission of the European Communities,                 only if certain requirements relating to the form of the
represented by Maria Patakia and Luis Escobar, acting as                undertaking, share capital, the lodging of security in the Caja
Agents, with an address for service in Luxembourg.                      General de Depósitos and the number of the undertaking’s
                                                                        employees and of its armoured vehicles are satisfied. Moreover,
                                                                        the Spanish legislation requires each and every member of the
                                                                        staff of an undertaking intending to provide private security
The applicant claims that the Court should:                             services in Spain to obtain a specific permit granted if the
                                                                        person satisfies a series of requirements, and produce more
1.   Declare that:                                                      than the evidence provided for in order to ensure that he or
                                                                        she possesses the knowledge and abilities needed for the
                                                                        performance of his or her duties. Those requirements do not
     —     by requiring, in the implementing legislation, that          serve to guarantee the attainment of the objectives pursued,
           private security firms and the members of their staff        which are public safety or the protection of the persons for
           should possess Spanish nationality;                          whom the private security services are provided.