23.11.2013   

EN

Official Journal of the European Union

C 344/51

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The Republic of Estonia considers that the following provisions of Directive 2013/34/EU (1) of the European Parliament and of the Council of 26 June 2013 on the annual financial statements, consolidated financial statements and related reports of certain types of undertakings, amending Directive 2006/43/EC of the European Parliament and of the Council and repealing Council Directives 78/660/EEC and 83/349/EEC:

are not consistent with the principles of proportionality and subsidiarity, and asks the Court to annul them on the ground of breach of the Treaties or the rules implementing them. The Republic of Estonia considers that, when those provisions were adopted, the obligation to state reasons laid down in Article 296 TFEU — an essential procedural requirement within the meaning of Article 263 TFEU — was also infringed. The Republic of Estonia consequently asks the Court to annul the words ‘and the disclosure requirement is contained in the national tax legislation for the strict purposes of tax collection’ in Article 4(6), the words ‘required by national tax legislation’ and ‘as referred to in paragraph 6’ in Article 4(8), and Article 16(3) and Article 6(3) as a whole. Should the Court take the view that those provisions are not to be regarded as separate and cannot be severed from the remaining text of the directive without changing it, and that the annulment of those provisions may affect the general system of the directive, the Republic of Estonia asks the Court to annul the directive as a whole on the same grounds and for the same reasons;

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order the European Parliament and the Council of the European Union to pay the costs.

1.

The Republic of Estonia brings an action for the annulment of certain provisions of Directive 2013/34/EU of the European Parliament and of the Council of 26 June 2013 on the annual financial statements, consolidated financial statements and related reports of certain types of undertakings, amending Directive 2006/43/EC of the European Parliament and of the Council and repealing Council Directives 78/660/EEC and 83/349/EEC (‘the Directive’) or alternatively of the Directive as a whole.

2.

The action is brought on the basis of the first paragraph of Article 263 TFEU for the annulment of the words ‘and the disclosure requirement is contained in the national tax legislation for the strict purposes of tax collection’ in Article 4(6), the words ‘required by national tax legislation’ and ‘as referred to in paragraph 6’ in Article 4(8), and Article 16(3) and Article 6(3) as a whole, or alternatively of the Directive as a whole, on the ground of breach of essential procedural requirements and infringement of the Treaties or rules implementing them.

3.

The breach of essential procedural requirements consists, in the opinion of the Republic of Estonia, in the failure to comply with the obligation to state reasons laid down in Article 296 TFEU when adopting the Directive. The infringement of the Treaty or the rules implementing it consists, in the opinion of the Republic of Estonia, in a breach of the principles of proportionality and subsidiarity.

4.

The Republic of Estonia submits that the maximum harmonisation measures in Article 4(6) in conjunction with Article 4(8) and Article 16(3) cannot strike an appropriate balance between the two objectives of the Directive — improving the clarity and comparability of financial statements and reducing the administrative burden on small and medium-sized undertakings. The measures adopted are not therefore appropriate for attaining the desired legitimate objective.

5.

An essential objective of the Directive — improving the clarity and comparability of financial statements — is not attainable by the measures adopted because proper regard was not had, when drawing up the draft of the Directive, to the structure of undertakings of the various Member States. As a result of transposing the Directive into the Member State’s legal system, 97.9 % of undertakings, accounting for more than half of the turnover achieved in the economy, would be freed from a substantial part of the requirements as to financial reporting — but that does not contribute to attaining the objective, extending to the whole European Union, of improving the clarity and comparability of financial statements.

6.

An essential objective of the Directive — reducing the administrative burden — is not attainable by the measures adopted because, when drawing up the draft of the Directive, account was not taken of the reduction of the administrative burden already achieved in the Member State by means other than reducing the extent of financial reporting; also because the information hitherto obtained from undertakings in the context of financial reporting, the requiring of which in that form would have to be discontinued in future because of the rule in Article 4(6), is, as previously, necessary information both for the private undertakings themselves and for the public sector. Additional information would therefore in future have to be collected and published through other channels — the administrative burden will thereby be relocated and may also increase.

7.

The principle of the priority of substance laid down in Article 6(1)(h) of the Directive is an important principle of the Directive. If it is possible for the Member States to abandon the principle of the priority of substance in accordance with Article 6(3) of the Directive and that possibility is made use of when transposing the provisions of the Directive into the national law of the Member State, then it is in principle not possible to attain the objective of improving the comparability, clarity and public confidence of financial statements extending to the whole European Union. Consequently, the measure adopted is not consistent with the principle of proportionality.

8.

In view of the fact that the result of adopting the measures in Article 4(6) and (8) and Article 16(3) of the Directive is not necessarily a Union-wide improvement of the clarity and comparability of financial statements and the measures adopted may also lead to a relocation instead of a reduction of the administrative burden in a Member State, the measures adopted do not make it possible better to attain the objectives of the Directive at European Union level. Those provisions are not therefore consistent with the principle of subsidiarity.