Case C-338/01

Commission of the European Communities

v

Council of the European Union

(Directive 2001/44/EC – Choice of legal basis)

Summary of the Judgment

1. Acts of the institutions – Choice of legal basis – Criteria – Community measure pursuing a twofold purpose or having a twofold component – Reference to the main or predominant purpose or component – Inseparable objectives – Dual legal bases – Limit – Incompatibility of procedures – Procedures under Articles 93 EC and 94 EC, on the one hand, and under Article 95 EC, on the other

(Arts 93 EC, 94 EC and 95 EC)

2. Approximation of laws – Article 95 EC – Scope – Exclusion of ‘fiscal provisions’ – Concept – Arrangements for the collection of taxes – Included

(Art. 95(2) EC)

3. Tax provisions – Harmonisation of laws – Directive 2001/44 – Legal basis – Articles 93 EC and 94 EC

(Arts 93 EC, 94 EC and 95 EC; Council Directive 2001/44)

1. 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. 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. 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. No dual legal basis, however, is possible where the procedures laid down for each legal basis are incompatible with each other. In that regard, the procedures set out under Articles 93 EC and 94 EC, on the one hand, and that set out under Article 95 EC, on the other, mean that the latter article cannot be applied in conjunction with one of the other two articles mentioned above in order to serve as the legal basis for the adoption of a Community measure. Whereas unanimity is required for the adoption of a measure on the basis of Articles 93 EC and 94 EC, a qualified majority is sufficient for a measure to be capable of valid adoption on the basis of Article 95 EC. Thus, of the provisions cited above, Articles 93 EC and 94 EC alone may provide a valid dual legal basis for the adoption of a legal measure by the Council.

(see paras 54-58)

2. The words ‘fiscal provisions’ contained in Article 95(2) EC, which excludes the application to such provisions of the procedure for the adoption of approximation measures which have as their object the establishment and functioning of the internal market, as provided for under Article 95(1) EC, must be interpreted as covering not only the provisions determining taxable persons, taxable transactions, the basis of imposition, and rates of and exemptions from direct and indirect taxes, but also those relating to arrangements for the collection of such taxes.

(see para. 67)

3. The Council acted correctly in adopting Directive 2001/44 amending Directive 76/308 on mutual assistance for the recovery of certain claims on the basis of Article 93 EC and Article 94 EC, and not on the basis of Article 95 EC. Directive 2001/44 does in fact relate to ‘fiscal provisions’ within the meaning of Article 95(2) EC, with the result that Article 95 EC cannot constitute the correct legal basis for the adoption of that directive.

(see paras 76-77)

JUDGMENT OF THE COURT (Sixth Chamber) 29 April 2004 (1)

(Directive 2001/44/EC – Choice of legal basis)

In Case C-338/01,

applicant, supported by

intervener,

v

defendant, supported by

by byby

by byby

and by and byand by

interveners,

APPLICATION for the annulment of Council Directive 2001/44/EC of 15 June 2001 amending Directive 76/308/EEC on mutual assistance for the recovery of claims resulting from operations forming part of the system of financing the European Agricultural Guidance and Guarantee Fund, and of agricultural levies and customs duties and in respect of value added tax and certain excise duties (OJ 2001 L 175, p. 17) and for the maintenance of the effects of that directive until the entry into force of a directive adopted on the correct legal basis,

THE COURT (Sixth Chamber),,

composed of: C. Gulmann, acting for the President of the Sixth Chamber, J.N. Cunha Rodrigues, J.-P. Puissochet, R. Schintgen (Rapporteur) and F. Macken, Judges,

Advocate General: S. Alber,

after hearing the Opinion of the Advocate General at the sitting on 9 September 2003,

gives the following

‘This Directive shall apply to all claims relating to:

‘1.

2.

3.

4.

5.‘1.

2.Within three months of the date of receipt of the request for recovery, Member States shall endeavour to complete such acceptance, recognition, supplementing or replacement, except in cases where the third subparagraph is applied. They may not be refused if the instrument permitting enforcement is properly drawn up. The requested authority shall inform the applicant authority of the grounds for exceeding the period of three months.

If any of these formalities should give rise to contestation in connection with the claim and/or the instrument permitting enforcement issued by the applicant authority, Article 12 shall apply.’

‘The requested authority may, where the laws, regulations or administrative provisions in force in the Member State in which it is situated so permit, and after consultations with the applicant authority, allow the debtor time to pay or authorise payment by instalment. Any interest charged by the requested authority in respect of such extra time to pay shall also be remitted to the Member State in which the applicant authority is situated.

From the date on which the instrument permitting enforcement of recovery of the claim has been directly recognised or accepted, recognised, supplemented or replaced in accordance with Article 8, interest will be charged for late payment under the laws, regulations and administrative provisions in force in the Member State in which the requested authority is situated and shall also be remitted to the Member State in which the applicant authority is situated.’

‘Notwithstanding Article 6(2), the claims to be recovered shall not necessarily benefit from the privileges accorded to similar claims arising in the Member State in which the requested authority is situated.’

‘As soon as the requested authority has received the notification referred to in paragraph 1 either from the applicant authority or from the interested party, it shall suspend the enforcement procedure pending the decision of the body competent in the matter. Should the requested authority deem it necessary, and without prejudice to Article 13, that authority may take precautionary measures to guarantee recovery in so far as the laws or regulations in force in the Member State in which it is situated allow such action for similar claims, unless the applicant authority requests otherwise in accordance with the second subparagraph.

Notwithstanding the first subparagraph of paragraph 2, the applicant authority may, in accordance with the law[s], regulations and administrative practices in force in the Member State in which it is situated, request the requested authority to recover a contested claim, in so far as the relevant laws, regulations and administrative practices in force in the Member State in which the requested authority is situated allow such action. If the result of contestation is subsequently favourable to the debtor, the applicant authority shall be liable for the reimbursement of any sums recovered, together with any compensation due, in accordance with the laws in force in the Member State in which the requested authority is situated.’

On those grounds,

THE COURT (Sixth Chamber)

hereby:

Orders Ireland, the Grand Duchy of Luxembourg, the Portuguese Republic, the United Kingdom of Great Britain and Northern Ireland and the European Parliament to pay their own costs.

C. Gulmann

J. N. Cunha Rodrigues

J.-P. Puissochet

R. Schintgen

F. Macken

Delivered in open court in Luxembourg on 29 April 2004.

R. Grass

V. Skouris

Registrar

President