Commission of the European Communities v Council of the European Union.
Date: 2004-04-29
54. It is settled case-law that the choice of the legal basis for a Community measure must rest on objective factors amenable to judicial review, which include in particular the aim and the content of the measure (see, inter alia, the titanium dioxide  judgment, paragraph 10, Case C-269/97 Commission  v Council  [2000] ECR I-2257, paragraph 43, and Case C-211/01 Commission v Council  [2003] ECR I-0000, paragraph 38).
55. If examination of a Community measure reveals that it pursues a twofold purpose or that it has a twofold component and if one of these is identifiable as the main or predominant purpose or component whereas the other is merely incidental, the act must be based on a single legal basis, namely that required by the main or predominant purpose or component (see to that effect, inter alia, Case C-155/91 Commission  v Council  [1993] ECR I-939, paragraphs 19 and 21, Case C-36/98 Spain  v Council  [2001] ECR I-779, paragraph 59, and Case C-211/01 Commission  v Council , cited above, paragraph 39).
56. By way of exception, if it is established that the measure simultaneously pursues several objectives which are inseparably linked without one being secondary and indirect in relation to the other, the measure must be founded on the corresponding legal bases (see, inter alia, Case C-336/00 Huber  [2002] ECR I-7699, paragraph 31; Case C-281/01 Commission  v Council  [2002] ECR I-12049, paragraph 35, Case C-211/01 Commission  v Council , paragraph 40, and Opinion 2/00 [2001] ECR I-9713, paragraph 23).
57. However, no dual legal basis is possible where the procedures laid down for each legal basis are incompatible with each other ( titanium dioxide  judgment, cited above, paragraphs 17 to 21, and Joined Cases C-164/97 and C-165/97 Parliament  v Council  [1999] ECR I-1139, paragraph 14).
60. It follows that, if the Treaty contains a more specific provision that is capable of constituting the legal basis for the measure in question, that measure must be founded on such provision. That is, in particular, the case with regard to Article 93 EC so far as concerns the harmonisation of legislation concerning turnover taxes, excise duties and other forms of indirect taxation.
61. It must also be pointed out that Article 95(2) EC expressly excludes certain areas from the scope of that article. This is in particular the case with regard to ‘fiscal provisions’, the approximation of which cannot therefore take place on the basis of that article.
65. It should further be added that, in accordance with the Court’s case-law on Article 90 EC, it is necessary, for the purposes of assessing whether or not a system of taxation is discriminatory, to take into consideration not only the rate of tax but also the basis of assessment and the detailed rules for levying the various duties. The decisive criterion for purposes of comparison with a view to the application of Article 90 EC is the actual effect of each tax on domestic production, on the one hand, and on imported products, on the other. Even where the rate is the same, the effect of the tax may vary according to the detailed rules for the assessment and collection thereof applied to domestic production and imported products ( Commission  v Ireland,  paragraph 8, and Grundig Italiana , paragraph 13, cited above).
68. With regard to the purpose of Directive 2001/44, it follows from the first three recitals in its preamble that it seeks to safeguard the ‘fiscal neutrality of the internal market’ and to protect the financial interests of both the Community and the Member States.
75. Finally, it is necessary to add that Directive 2001/44 carries out a degree of approximation of national provisions in the area of taxation inasmuch as it obliges all Member States to treat claims originating in other Member States as being national claims, such an interpretation being corroborated by the words ‘fiscal neutrality’ featuring in the second recital in the preamble to Directive 2001/44.