**Case C-18/08**

**Foselev Sud-Ouest SARL**

**v**

**Administration des douanes et droits indirects**

(Reference for a preliminary ruling from the

Tribunal d’instance de Bordeaux)

(Tax on motor vehicles – Directive 1999/62/EC – Charging of heavy goods vehicles for the use of certain infrastructures – Article 6(2)(b) – Commission decision approving an exemption – No direct effect)

Summary of the Judgment

*Transport – Road transport – Tax provisions – Harmonisation of laws – Directive 1999/62 – Charging of heavy goods vehicles
for the use of certain infrastructures*

*(European Parliament and Council Directive 1999/62, Art. 6(2)(b); Commission Decision 2005/449)*

Decision 2005/449 concerning a request for exemption from the vehicle tax rules submitted by France pursuant to Article 6(2)(b)
of Directive 1999/62 the charging of heavy goods vehicles for the use of certain infrastructures cannot be relied on by an
individual against the French Republic, to which that decision was addressed, in order to obtain the benefit of the exemption
approved by that decision upon its notification or publication.

It is clear from Article 6(2)(b) of that directive that in spite of the part played by the Commission, the Member States have
a broad discretion both as regards their decision to make use of the exemption provided for under that article and as regards
the content of the measure envisaged, without the Commission’s approval of that measure making it in any way obligatory to
use that possibility. Thus, the aim and effect of Decision 2005/449 is not to compel the French Republic to grant the exemption
proposed in its request for authorisation, but to authorise it to make such an exemption if it so wishes.

The fact that Decision 2005/449 does not specify the date from which it first applies, but merely sets the expiry date for
the approved exemption as 31 December 2009, does not affect the scope and the effects of that decision. Indeed, under the
terms of Article 254(3) EC, Decision 2005/449 takes effect upon its notification to the addressee, in this case the French
Republic. The fact remains that one such effect is to make possible an exemption – which, in the present case, does not yet
exist and which cannot be implemented without a national legislative act – but in no way to impose such an exemption.

(see paras 15-19, operative part)

JUDGMENT OF THE COURT (Second Chamber)

20 November 2008 (*)

(Tax on motor vehicles – Directive 1999/62/EC – Charging of heavy goods vehicles for the use of certain infrastructures – Article 6(2)(b) – Commission decision approving an exemption – No direct effect)

In Case C‐18/08,

REFERENCE for a preliminary ruling under Article 234 EC, from the Tribunal d’instance de Bordeaux (France), made by decision
of 4 December 2007, received at the Court on 21 January 2008, in the proceedings

**Foselev Sud-Ouest SARL**

v

**Administration des douanes et droits indirects,**

THE COURT (Second Chamber),

composed of C.W.A. Timmermans, President of the Chamber, K. Schiemann, J. Makarczyk, P. Kūris (Rapporteur) and C. Toader,
Judges,

Advocate General: J. Kokott,

Registrar: R. Grass,

having regard to the written procedure,

after considering the observations submitted on behalf of:

–        Foselev Sud-Ouest SARL, by L. Menestrier, avocat,

–        the French Government, by G. de Bergues and L. Butel, acting as Agents,

–        the Italian Government, by R. Adam, acting as Agent, and F. Arena, avvocato dello Stato,

–        the Commission of the European Communities, by D. Maidani, acting as Agent,

after hearing the Opinion of the Advocate General at the sitting on 25 September 2008,

gives the following

**Judgment**

1        This reference for a preliminary ruling concerns the interpretation of Article 6(2)(b) of Directive 1999/62/EC of the European
Parliament and of the Council of 17 June 1999 on the charging of heavy goods vehicles for the use of certain infrastructures
(OJ 1999 L 187, p. 42) and of Commission Decision 2005/449/EC of 20 June 2005 concerning a request for exemption from the
vehicle tax rules submitted by France pursuant to Article 6(2)(b) of Directive 1999/62 (OJ 2005 L 158, p. 23)

2        The reference was made in the course of proceedings brought by Foselev Sud-Ouest SARL (‘Foselev’) seeking an order directing
the Administration des douanes et droits indirects (administrative authority for customs and indirect taxes) to refund the
sum of EUR 1 973.74 that it claims to have been unduly required to pay between 20 June 2005 and 9 July 2006 by way of axle
tax, a tax on motor vehicles weighing 12 tonnes or more which are not specially designed for the carriage of persons, plus
interest and costs.

**Legal background**

3        Article 6(2) of Directive 1999/62 provides:

‘Member States may apply reduced rates or exemptions for:

...

(b)      vehicles which travel only occasionally on the public roads of the Member State of registration and are used by natural or
legal persons whose main occupation is not the carriage of goods, provided that the transport operations carried out by these
vehicles do not cause distortions of competition, and subject to the Commission’s agreement.’

4        The enacting terms of Decision 2005/449 provide as follows:

‘Article 1

The Commission hereby gives its agreement to exempt until 31 December 2009 from vehicle tax in accordance with Article 6(2)(b)
of Directive 1999/62/EC the following vehicles of 12 tonnes or more, which are used exclusively for the carriage of permanently
installed equipment for public and industrial works in France:

...

Article 2

This Decision is addressed to the French Republic.’

5        The French authorities implemented Decision 2005/449 by Decree No 2006-818 of 7 July 2006 amending Decree No 70-1285 of 23
December 1970 on the transfer to the customs administration of the basis of assessment and the recovery of the special tax
on certain road vehicles (JORF of 9 July 2006, p. 10311).

**The dispute in the main proceedings and the question referred for a preliminary ruling**

6        It is apparent from the order for reference that Foselev carries on business in the following sectors: lifting, handling,
haulage, industrial maintenance, industrial piping, industrial cleaning and modular construction. Foselev maintains that axle
tax has no longer been payable on the vehicles covered by Decision 2005/449 since 20 June 2005, the date on which that decision
was adopted.

7        The Administration des douanes et droits indirects argues, however, that the exemption relied on by Foselev did not enter
into force until the date on which Decree No 2006-818 was published in the *Journal official de la République française*, that is to say, 9 July 2006.

8        On the view that the dispute before it raises the question whether Decision 2005/449, which authorises the French Republic
to exempt certain specified vehicles from axle tax, places that Member State under an obligation to implement the exemption
approved, and is therefore capable of producing direct effects in the relationship between the French tax authorities and
Foselev, the Tribunal d’instance de Bordeaux decided to stay the proceedings and to refer the following question to the Court
for a preliminary ruling:

‘Article 6(2)(b) of Directive 1999/62 ... provides for the possibility for a Member State to exempt [from the taxes covered
by that directive] certain categories of vehicle. In this context, is the authorisation given to [the French Republic] by
the Commission, in Decision [2005/449], to exempt certain categories of vehicle directly applicable to individuals or, as
it concerns an authorisation decision addressed to [the French Republic], is a measure transposing it into national law necessary?’

**The question referred for a preliminary ruling**

9        By its question, the referring court asks essentially whether Decision 2005/449 approving, pursuant to Article 6(2)(b) of
Directive 1999/62, the exemption from axle tax envisaged by the French Republic may be relied on by an individual against
that Member State in order to obtain the benefit of that exemption upon the notification or publication of that decision.

10      In that connection, the fourth paragraph of Article 249 EC provides that a decision is to be binding in its entirety upon
those to whom it is addressed. In the present case, it is evident that the addressee of Decision 2005/449 is the French Republic.

11      Furthermore, it should be borne in mind that the Court has held, first, that it would be incompatible with the binding effect
attributed to decisions by Article 189 of the EEC Treaty (which became Article 189 of the EC Treaty, now Article 249 EC) to
exclude in principle the possibility that persons affected may invoke the obligation imposed by the decision and, secondly,
that a provision of a decision addressed to a Member State may be relied on as against that Member State where the provision
in question imposes on its addressee an obligation which is unconditional and sufficiently clear and precise (Case C-156/91
*Hansa Fleisch Ernst Mundt* [1992] ECR I-5567, paragraphs 12 and 13 and the case-law cited).

12      It must therefore be determined whether Decision 2005/449 imposes on the French Republic an unconditional obligation which
is sufficiently clear and precise.

13      In that regard, it should be noted that the legal basis for that decision is Article 6(2)(b) of Directive 1999/62, under which
it is possible for a Member State to exempt certain vehicles from motor vehicle tax or to apply a reduced rate of taxation
to such vehicles.

14      Furthermore, in accordance with that provision, use of that possibility by a Member State is conditional upon the Commission’s
approval of a draft measure.

15      Accordingly, it is sufficient to hold that, in spite of the part played by the Commission, the Member States have a broad
discretion both as regards their decision to make use of the possibility and as regards the content of the measure envisaged,
without the Commission’s approval of that measure making it in any way obligatory to use that possibility.

16      Thus, the aim and effect of Decision 2005/449 is not to compel the French Republic to grant the exemption proposed in its
request for authorisation, but to authorise it to make such an exemption if it so wishes.

17      Furthermore, the fact that Decision 2005/449 does not specify the date from which it first applies, but merely sets the expiry
date for the approved exemption as 31 December 2009, does not affect the scope and the effects of that decision.

18      Indeed, under the terms of Article 254(3) EC, Decision 2005/449 takes effect upon its notification to the addressee, in this
case the French Republic. The fact remains that one such effect is to make possible an exemption – which, in the present case,
does not yet exist and which cannot be implemented without a national legislative act – but in no way to impose such an exemption.

19      In the light of all of the foregoing, the answer to the question referred must be that Decision 2005/449 cannot be relied
on by an individual against the French Republic, to which that decision was addressed, in order to obtain the benefit of the
exemption approved by that decision upon its notification or publication.

**Costs**

20      Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court,
the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs
of those parties, are not recoverable.

On those grounds, the Court (Second Chamber) hereby rules:

**Commission Decision 2005/449/EC of 20 June 2005 concerning a request for exemption from the vehicle tax rules submitted by
France pursuant to Article 6(2)(b) of Directive 1999/62/EC of the European Parliament and of the Council on the charging of
heavy goods vehicles for the use of certain infrastructures cannot be relied on by an individual against the French Republic,
to which that decision was addressed, in order to obtain the benefit of the exemption approved by that decision upon its notification
or publication.**

[Signatures]

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- Language of the case: French.