European Commission v Federal Republic of Germany.
Date: 2011-11-15
56. It must be borne in mind in that regard that the Treaties set up a system for distributing powers among the Community institutions, assigning to each institution its own role in the institutional structure of the Community and the accomplishment of the tasks entrusted to the Community (Case C‑70/88 Parliament  v Council  [1990] ECR I‑2041, paragraph 21).
62. Article 248(4) EC provides, inter alia, that the Court of Auditors is to draw up an annual report which it is to forward to the other institutions and which is published in the Official Journal of the European Union , together with the replies of those institutions to the observations of the Court of Auditors. The latter may also, at any time, submit observations, particularly in the form of special reports, on specific questions and deliver opinions at the request of one of the other institutions of the Community. As the Court of Justice has already stated, that provision is intended to contribute to improving the financial management of the Community by providing for reports to be transmitted to the institutions and for the latter to respond to them (Case C‑315/99 P Ismeri Europa  v Court of Auditors  [2001] ECR I‑5281, paragraph 27). Such reports are intended to give guidance to the budgetary authority required to discharge the accounts and, more generally, to all public bodies capable of contributing to the filling or correction of any lacunae or dysfunction observed by the Court of Auditors in those areas.
68. Those adjustments include, in particular, that resulting from the clarification contained in the third indent of Article 2(2) of Regulation No 1553/89, according to which, for the purposes of applying Article 2(1), transactions which Member States continue to exempt pursuant to Article 28(3)(b) of the Sixth VAT Directive are to be taken into account for determining VAT resources. In that regard, the second indent of Article 6(2) of Regulation No 1553/89 provides inter alia that, for the purposes of applying the third indent of Article 2(2) of that regulation, Member States are to calculate the VAT resources base as if these transactions were taxed, in order to place those States on an equal footing with the other Member States which have not chosen to exempt a particular sector (see Case C‑251/88 Commission  v Germany  [1990] ECR I‑2107, paragraph 14).
69. In those various respects, it is certainly true that revenue accruing from payments of VAT remains, for the most part, national tax revenue that is entered in the budget of the Member States, so that only a small percentage of that revenue will be added to the Community budget as own resources (see, to that effect, Case C‑414/97 Commission  v Spain [1999] ECR I‑5585, paragraph 23).
71. Such findings do not, however, alter the fact that the system of own resources established pursuant to the Treaty is designed, as regards VAT resources, to create an obligation on the part of the Member States to make available to the Community as own resources a proportion of the amounts which they collect as VAT (see, to that effect, Case C‑30/89 Commission  v France [1990] ECR I‑691, paragraph 23). Nor do those findings alter the fact that the Member States are required – for the purposes of ensuring an effective levy of that VAT revenue and of being able, to the extent required by Decisions 2000/597 or 2007/436 and Regulation No 1553/89, to make the corresponding VAT resources available to the Community budget – to respect the various rules of Community law relating to that levy, such as those contained in the Sixth VAT Directive and the VAT Directive, and indeed Regulation No 1798/2003. The situation is, in that regard, appreciably different from that of own resources based on the GNI of the Member States.
72. There is thus a direct link between, on the one hand, the collection of VAT revenue in compliance with the Community law applicable and, on the other, the availability to the Community budget of the corresponding VAT resources, since any lacuna in the collection of the first potentially causes a reduction in the second.
73. In that respect, the Court of Justice has held, in particular, that where a Member State has failed to make a type of transaction subject to VAT, contrary to the requirements of the Sixth VAT Directive, such an infringement is also liable to result in a failure by that Member State to fulfil its obligation to make available to the Commission, as VAT resources, the amounts corresponding to the tax which should have been levied on those transactions (see, in particular, Case C‑276/97 Commission  v France  [2000] ECR I‑6251, paragraphs 49, 56, 61 and 70; Case C‑358/97 Commission  v Ireland  [2000] ECR I‑6301, paragraphs 58, 65, 69 and 78; and Case C‑359/97 Commission  v  United Kingdom  [2000] ECR I‑6355, paragraphs 70, 77 and 87).
74. Similarly, having observed that it follows from Articles 2 and 22 of the Sixth VAT Directive and from Article 10 EC that every Member State is under an obligation to take all legislative and administrative measures appropriate for ensuring collection of all the VAT due on its territory, and stated that, under the common system of VAT, Member States are required to ensure compliance with the obligations to which taxable persons are subject and that they enjoy in that respect a certain measure of latitude, inter alia, as to how they use the means at their disposal, the Court of Justice has added that that latitude is nevertheless limited, in particular, by the obligation to ensure effective collection of the Community’s own resources (Case C‑132/06 Commission  v Italy  [2008] ECR I‑5457, paragraphs 37 to 39).
75. The Council’s aims in adopting the Sixth VAT Directive include, moreover – as is apparent in particular from the 11th recital in the preamble to that directive, since reproduced in recital 35 in the VAT Directive – that of ensuring that the Community’s own resources are collected in a uniform manner in all the Member States (see Case C‑326/99 ‘Goed Wonen’ [2001] ECR I‑6831, paragraph 47 and the case-law cited).
78. In that regard, it must be pointed out that a significant proportion of VAT fraud arises in connection with genuine or claimed intra-Community trade and, moreover, that the Court of Justice has previously held that the mutual assistance of and administrative cooperation between the tax authorities of the Member States concerned is of fundamental importance for the purposes, inter alia, of ensuring that intra-Community acquisitions do not escape payment of VAT (see, to that effect, Case C‑285/09 R [2010] ECR I‑0000, paragraph 52).
87. As regards, in the second place, the infringement of Article 10 EC upon which the Commission also relies, it is sufficient, by contrast, to point out that there are no grounds for holding that there has been a failure to fulfil the general obligations contained in that article that is separate from the established failure to fulfil the more specific obligations by which the Federal Republic of Germany was bound under Article 248 EC (see, to that effect, Case C‑334/08 Commission  v Italy  [2010] ECR I‑0000, paragraph 75 and the case-law cited). As has just been observed, Article 248(3) EC expressly provides that audits within the competence of the Court of Auditors under paragraphs 1 and 2 of that article may, if necessary, take place on the spot in the Member States, such audits being carried out in liaison with national audit bodies or with the competent national departments called upon in such cases to cooperate with the Court of Auditors in a spirit of trust.