Notice for the OJ
Action brought on 28 April 2003
by the Kingdom of Belgium against the
Commission of the European Communities
(Case C-182/03)
An action against the Commission of the European Communities was brought before the Court of Justice of the European Communities on 28 April 2003 by the Kingdom of Belgium, represented by A. Snoecx, acting as Agent, assisted by P. Kelley, B. van der Walle de Ghelcke and J. Wouters, avocats.
The Kingdom of Belgium claims that the Court should:
(annul the decision of the Commission of the European Communities C(2003) final of 17 February 2003 concerning the aid scheme implemented by the Kingdom of Belgium in favour of coordination centres established in Belgium, inasmuch as it does not authorise Belgium to grant, even temporarily, renewal of coordination centre status to the coordination centres which benefited from the scheme as at 31 December 2000;
(order the Commission to pay the costs.
Pleas in law and main arguments:
First plea: infringement of Article 88(2) of the EC Treaty, infringement of the principle of legal certainty, of the protection of legitimate expectations and of proportionality in that the Commission did not allow a reasonable period for the Belgian State and the coordination centres whose individual authorisations expire before 31 December 2010; more specifically in the months following the notification of the decision.
Article 8 of the decision requires the Belgian State to repeal the tax regime for the coordination centres or to amend it so as to make it compatible with the common market and Article 3 of the decision fixes a period of two months within which to take the measures necessary to comply with that obligation. That period is manifestly insufficient, as the scheme in question can be amended only by a formal law adopted by the Parliament. The Commission thus infringes Article 88(2) of the EC Treaty, which, according to the case-law, is based on the notion of cooperation between the Member State and the Commission. The requirement for a reasonable period applies all the more in a case such as this where the scheme in question, notified in the 1980s, had not been considered by the Commission to constitute an aid.
Nor is the period reasonable for the coordination centres. The authorisations are for 10 years and are renewable on the sole condition that the centre continues to comply with the conditions laid down by the rules. The recitals of the decision recognise that there is a need to protect the legitimate expectation of existing coordination centres, but the decision prohibits any renewal of approvals, even for those which expire in the months following notification of the decision. For a number of the centres concerned, the decision entails the immediate cessation of their activities.
Second plea: infringement of Article 88(2) of the EC Treaty and infringement of the principle of legitimate expectation resulting from the Council Decision on the code of conduct.
A code of conduct for business taxation was adopted by resolution of the Council and representatives of governments of the Member States, meeting within the Council, on 1 December 1997. With regard to the 66 taxation measures covered by the code of conduct, including the coordination centres scheme, the ECOFIN Council of 26 and 27 November 2000 decided that, as regards undertakings benefiting from a harmful regime on 31 December 2000, the effects of those regimes would expire at the latest on 31 December 2005, whether they are regimes granted for a fixed period or not. Lastly, on 21 January 2003 agreement in principle was made within the Council relating to the application of the code of conduct which provides in particular that the coordination centres which benefited from the regime on 31 December 2000 could continue to benefit fully from their authorisation for the 10-year period under way and until 31 December 2010 at the latest.
The contested decision prohibits renewal of authorisations expiring after the notification of the decision and therefore infringes the legitimate expectations of both the Belgian State and of the coordination centres with regard to the extension of existing authorisations until 31 December 2010.
Third plea: infringement of the principle of equal treatment.
The system adopted by the Commission introduces unjustifiable discrimination between the situation of centres whose approval has been renewed shortly before 31 December 2000 and who benefit from the regime until 2010 and centres whose authorisation will expire in 2003 and which lose the benefit of the regime because of an expiration date of only a few months.
Fourth plea: infringement of the obligation to state reasons.
The Commission does not give reasons that are adequate in law to explain why it has not provided a transitional period for centres whose authorisation expires shortly after the date of the decision. Lastly, the decision is wholely deficient in regard to the failure to take into account, for implementation of transitional measures, of the period from 1 January 2001 to 16 February 2003.
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