CELEX: C2004/059/14
Language: en
Date: 2004-03-06 00:00:00
Title: Case C-531/03: Action brought on 18 December 2003 by the Commission of the European Communities against the Federal Republic of Germany

C 59/8                   EN                        Official Journal of the European Union                                           6.3.2004
2.    order the Kingdom of the Netherlands to pay the costs.               Action brought on 18 December 2003 by the Commission
                                                                           of the European Communities against the Federal Repub-
                                                                                                     lic of Germany
Pleas in law and main arguments
                                                                                                    (Case C-531/03)
The period for implementation of the Directive expired on
28 December 2002.                                                                                    (2004/C 59/14)
(1) OJ 2000 L 332, p. 81.
                                                                           An action against the Federal Republic of Germany was
                                                                           brought before the Court of Justice of the European Communi-
                                                                           ties on 18 December 2003 by the Commission of the European
                                                                           Communities, represented by Josef Christian Schieferer, of the
                                                                           Legal Service of the Commission of the European Communi-
                                                                           ties, and Florence Simonetti, a national civil servant on
Action brought on 15 December 2003 by the Commission
                                                                           secondment to the Legal Service of the Commission, acting as
of the European Communities against the Kingdom of the
                                                                           Agents, with an address for service in Luxembourg.
                             Netherlands
                          (Case C-528/03)
                                                                           The applicant claims that the Court should:
                           (2004/C 59/13)
                                                                           1.    Declare that the Federal Republic of Germany has failed
                                                                                 to fulfil its obligations under Article 4, in conjunction
                                                                                 with point 7(b) and (c) of Annex I and point 10(e) of
An action against the Kingdom of the Netherlands was brought                     Annex II, of Council Directive 85/337/EEC (1)of 27 June
before the Court of Justice of the European Communities on                       1985 on the assessment of the effects of certain public
15 December 2003 by the Commission of the European                               and private projects on the environment, as amended by
Communities, represented by K. Simonsson and W. Wils,                            Council Directive 97/11/EC (2) of 3 March 1997,
acting as Agents.
                                                                                 —     in so far as that directive has, in particular, not yet
                                                                                       been transposed for purposes of road construction
The applicant claims that the Court should:                                            projects in the federal Land of Rhineland-Palatinate
                                                                                       and
1.    declare that, by failing to adopt the laws, regulations
      and administrative provisions necessary to comply with
      Commission Directive 2002/35/EC (1) of 25 April 2002                       —     in so far as it is possible for road construction
      concerning the setting up of a harmonised safety regime                          projects in the federal Land of North Rhine-
      for fishing vessels of 24 metres in length and over, or, in                      Westphalia to be granted development consent
      any event, by failing to notify the Commission of those                          without an environmental impact assessment being
      measures, the Kingdom of the Netherlands has failed to                           carried out;
      fulfil its obligations under that directive;
                                                                           2.    Order the Federal Republic of Germany to pay the costs
2.    order the Kingdom of the Netherlands to pay the costs.                     of the proceedings.
Pleas in law and main arguments
                                                                           Pleas in law and main arguments
The period for implementation of the Directive expired on
1 January 2003.
                                                                           The period for transposition of Directive 97/11/EC amending
(1) OJ 2002 L 112, p. 21.
                                                                           Directive 85/337/EEC expired on 14 March 1999 without the
                                                                           federal Land of Rhineland-Palatinate having adopted the
                                                                           necessary measures to implement it, in particular in relation to
                                                                           road construction projects.
 ---pagebreak--- 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.