# C_2012399EN.01001101.xml

| 22.12.2012 | EN | Official Journal of the European Union | C 399/11 |
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22.12.2012

EN

Official Journal of the European Union

C 399/11

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Reference for a preliminary ruling from the Gerechtshof te ’s Hertogenbosch (Netherlands), lodged on 1 October 2012 — X; Other party: Voorzitter van het managementteam van het onderdeel Belastingdienst/Z van de rijksbelastingdienst

(Case C-437/12)

2012/C 399/19

Language of the case: Dutch

Referring court

Referring court

Gerechtshof te ’s Hertogenbosch

Parties to the main proceedings

Parties to the main proceedings

Appellant: X

Appellant:

Other party: Voorzitter van het managementteam van het onderdeel Belastingdienst/Z van de rijksbelastingdienst

Other party:

Questions referred

Questions referred

| 1. | In the appraisal of the question — to be answered in the context of Article 110 TFEU — as to whether the amount of the levy in 2010 in respect of the registration of the passenger car [concerned] is (not) higher than the residual amount of the levy which is incorporated in the value of similar used passenger cars already registered within national territory, should the following be considered to be similar for purposes of determining that residual amount:






  — | a comparable passenger car which, in the year in which the passenger car [concerned] was first put into service (2006), was registered as an unused passenger car, or |
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1.

In the appraisal of the question — to be answered in the context of Article 110 TFEU — as to whether the amount of the levy in 2010 in respect of the registration of the passenger car [concerned] is (not) higher than the residual amount of the levy which is incorporated in the value of similar used passenger cars already registered within national territory, should the following be considered to be similar for purposes of determining that residual amount:

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a comparable passenger car which, in the year in which the passenger car [concerned] was first put into service (2006), was registered as an unused passenger car, or

| — | also the (other) passenger cars which were available on the market for second-hand passenger cars in 2010, and which, like the passenger car [concerned], were first put into service on 30 May 2006 and are otherwise comparable, but which were (imported and) registered as used passenger cars after 30 May 2006 (after 30 May 2006 and up to 2009), and/or |
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also the (other) passenger cars which were available on the market for second-hand passenger cars in 2010, and which, like the passenger car [concerned], were first put into service on 30 May 2006 and are otherwise comparable, but which were (imported and) registered as used passenger cars after 30 May 2006 (after 30 May 2006 and up to 2009), and/or

| — | also the (other) passenger cars which were available on the market for second-hand passenger cars in 2010, and which, unlike the passenger car [concerned], were first put into service after 30 May 2006, but are otherwise comparable, and which were (imported and) registered as unused or used passenger cars after 30 May 2006 (after 30 May 2006 and up to 2009)? |
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also the (other) passenger cars which were available on the market for second-hand passenger cars in 2010, and which, unlike the passenger car [concerned], were first put into service after 30 May 2006, but are otherwise comparable, and which were (imported and) registered as unused or used passenger cars after 30 May 2006 (after 30 May 2006 and up to 2009)?

| 2. | In the appraisal of the question as to whether Article 110 TFEU precludes the levying of BPM (1) in respect of the registration of the passenger car in 2010 in so far as that levy is based on the CO2 emission (in accordance with the tables in Article 9(1) of the Wet BPM (Netherlands Law on passenger-car and motorcycle tax), should that part of the levy be deemed to be a new tax, to be distinguished from the BPM up to 1 February 2008, which was based solely on the list price, with the result that, to the extent to which the levy is based on the CO2 emission, a comparison with (similar) second hand passenger cars which were registered before 1 January 2010 is not relevant? |
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2.

In the appraisal of the question as to whether Article 110 TFEU precludes the levying of BPM (1) in respect of the registration of the passenger car in 2010 in so far as that levy is based on the CO2 emission (in accordance with the tables in Article 9(1) of the Wet BPM (Netherlands Law on passenger-car and motorcycle tax), should that part of the levy be deemed to be a new tax, to be distinguished from the BPM up to 1 February 2008, which was based solely on the list price, with the result that, to the extent to which the levy is based on the CO2 emission, a comparison with (similar) second hand passenger cars which were registered before 1 January 2010 is not relevant?

1

2

2

| 3. | If there is no question of a new tax as contemplated in Question 2: is the levying of BPM in respect of the registration of the passenger car in 2010, in so far as that levy is based on the CO2 emission (in accordance with the tables in Article 9(1) of the Wet BPM), precluded by the fact that, pursuant to Article 110 TFEU, the levy based on the CO2 emission (under Article 9ba of the Wet BPM applicable at the time) was not imposed in respect of passenger cars comparable to the passenger car [concerned] which were first put into service before 1 February 2008 and which, in the period from 1 February 2008 to 31 December 2009, were imported and registered as used passenger cars, whereas that levy based on the CO2 emission was imposed in respect of the registration, in the aforementioned period, of passenger cars which were first put into service after 1 February 2008 but were otherwise comparable to the passenger car [concerned]? |
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3.

If there is no question of a new tax as contemplated in Question 2: is the levying of BPM in respect of the registration of the passenger car in 2010, in so far as that levy is based on the CO2 emission (in accordance with the tables in Article 9(1) of the Wet BPM), precluded by the fact that, pursuant to Article 110 TFEU, the levy based on the CO2 emission (under Article 9ba of the Wet BPM applicable at the time) was not imposed in respect of passenger cars comparable to the passenger car [concerned] which were first put into service before 1 February 2008 and which, in the period from 1 February 2008 to 31 December 2009, were imported and registered as used passenger cars, whereas that levy based on the CO2 emission was imposed in respect of the registration, in the aforementioned period, of passenger cars which were first put into service after 1 February 2008 but were otherwise comparable to the passenger car [concerned]?

2

2

2

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(1)  Belasting personenauto’s en motorrijwielen (Netherlands passenger-car and motorcycle tax).

1

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