Case C‑209/13

United Kingdom of Great Britain and Northern Ireland

v

Council of the European Union

(Common system of financial transaction tax — Authorisation of enhanced cooperation under Article 329(1) TFEU — Decision 2013/52/EU — Action for annulment in respect of infringement of Articles 327 TFEU and 332 TFEU and of customary international law)

Summary — Judgment of the Court (Second Chamber), 30 April 2014

1.        Judicial proceedings — Application initiating proceedings — Formal requirements — Identification of the subject-matter of the dispute — Brief summary of the pleas in law on which the application is based — Unambiguous wording of the form of order sought by the applicant

(Rules of Procedure of the Court of Justice, Art. 120(c))

2.        European Union — Enhanced cooperation — Decision to authorise enhanced cooperation — Action for annulment of that decision — Judicial review — Limits

(Art. 20 TEU; Arts 326 TFEU to 334 TFEU)

3.        European Union — Enhanced cooperation — Establishment of a tax on financial transactions — Decision 2013/52 — No provisions in that decision on the principles of taxation and the expenditure linked to that cooperation — Not possible to examine effects of that decision on non-participating Member States for as long as the principles of taxation in respect of that tax have not been established

(Council Decision 2013/52)

1.        See the text of the judgment.

(see paras 30-32)

2.        In the context of an action for the annulment of a Council decision which has as its subject-matter the authorisation of enhanced cooperation on the basis of Article 329 TFEU, the Court’s review is related to the issue of whether that decision is valid as such in the light of, inter alia, the provisions, contained in Article 20 TEU and in Articles 326 TFEU to 334 TFEU, which define the substantive and procedural conditions relating to the granting of such authorisation.

That review should not be confused with the review which may be undertaken, in the context of a subsequent action for annulment, of a measure adopted for the purposes of the implementation of the authorised enhanced cooperation.

(see paras 33, 34)

3.        The objective of Decision 2013/52 authorising enhanced cooperation in the area of financial transaction tax is to authorise 11 Member States to establish enhanced cooperation between themselves in the area of the establishment of a common system of financial transaction tax (FTT) with due regard to the relevant provisions of the Treaties.

First, the principles of taxation (‘the counterparty principle’ and ‘the issuance principle’) are not in any way constituent elements of that decision. Second, the contested decision contains no provision related to the issue of expenditure linked to the implementation of the enhanced cooperation authorised by that decision.

Further, and irrespective of whether the concept of ‘expenditure resulting from implementation of enhanced cooperation’, within the meaning of Article 332 TFEU, does or does not cover the costs of mutual assistance and administrative cooperation, the question of the possible effects of the future FTT on the administrative costs of the non-participating Member States cannot be examined for as long as the principles of taxation in respect of that tax have not been definitively established as part of the implementation of the enhanced cooperation authorised by the contested decision.

(see paras 36-38)