AG Cruz Villalón proposed that the Court should declare that it lacks jurisdiction to reply to the following questions referred to it by the Swedish Court (Haparanda tingsrätt) and related to the Swedish system of penalties applicable to infringements of VAT legislation.
RELEVANT LAW: Article 6 TEU, Articles 50, 51 Charter, VAT Directive - art 273, ECHR- Article 4 of Protocol No 7
DO WE DEAL WITH IMPLEMENTATION OF EU LAW IN THIS CASE?
The requirement to respect fundamental rights defined in the context of the Union is only binding on the Member States when they act in the scope of Union law (judgment of 13 July 1989, Case 5/88 Wachauf [1989] ECR 2609; judgment of 18 June 1991, Case C-260/89 ERT [1991] ECR I-2925; judgment of 18 December 1997, Case C-309/96 Annibaldi [1997] ECR I-7493).
The central authorities of the Member states have to respect their duties flowing from the protection of fundamental rights in the Union legal order, while implementing EU law, (Kjell Karlsson para 37)
By distinguishing between CAUSA (collecting VAT) and OCCASIO (penalties provided for a specific conduct of a VAT taxable person), AG CRUZ VILLALÓN concludes that the authorities of Sweden do not implement EU law in this case and therefore the CJEU lacks jurisdiction to give a ruling in these proceedings.
AG Sharpston in Zambrano Case C‑34/09 had an interesting proposition:
163. Transparency and clarity require that one be able to identify with certainty what ‘the scope of Union law’ means for the purposes of EU fundamental rights protection. It seems to me that, in the long run, the clearest rule would be one that made the availability of EU fundamental rights protection dependent neither on whether a Treaty provision was directly applicable nor on whether secondary legislation had been enacted, but rather on the existence and scope of a material EU competence. To put the point another way: the rule would be that, provided that the EU had competence (whether exclusive or shared) in a particular area of law, EU fundamental rights should protect the citizen of the EU even if such competence has not yet been exercised.
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