# C_2004168EN.01000101.xml

| 26.6.2004 | EN | Official Journal of the European Union | C 168/1 |
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26.6.2004

EN

Official Journal of the European Union

C 168/1

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Action brought on 15 March 2004 against the Kingdom of Denmark by the Commission of the European Communities

(Case C-138/04)

(2004/C 168/01)

An action was brought before the Court of Justice of the European Communities on 15 March 2004 by the Commission of the European Communities, represented by R. Lyal and T. Fich, acting as Agents, against the Kingdom of Denmark.

The Commission claims that the Court should:

| 1. | Declare that, by not allowing persons transferring definitively their normal residence to Denmark to benefit from the exemption provided for in Article 1(1) of Directive 83/183/EEC with respect to the ‘registration fee’ which is, in reality, a tax on consumption, the Kingdom of Denmark has failed to fulfil its obligations under Article 249 EC and Directive 83/183/EEC (1). |
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1.

Declare that, by not allowing persons transferring definitively their normal residence to Denmark to benefit from the exemption provided for in Article 1(1) of Directive 83/183/EEC with respect to the ‘registration fee’ which is, in reality, a tax on consumption, the Kingdom of Denmark has failed to fulfil its obligations under Article 249 EC and Directive 83/183/EEC (1).

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| 2. | Order the Kingdom of Denmark to pay the costs. |
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2.

Order the Kingdom of Denmark to pay the costs.

Pleas in law and principal arguments:

The registration fee on motor vehicles is charged when the vehicle is registered for the first time in Denmark, so that persons importing their vehicles with a view to using them in Denmark as part of their transferring their normal residence from another country to Denmark are also subject to the tax.

| — | The Commission is of the view that the registration fee thereby constitutes a ‘consumption tax normally charged on personal property imported permanently from another Member State by private individuals’, for which the Member States are to grant an exemption pursuant to Article 1(1) of the directive. |
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The Commission is of the view that the registration fee thereby constitutes a ‘consumption tax normally charged on personal property imported permanently from another Member State by private individuals’, for which the Member States are to grant an exemption pursuant to Article 1(1) of the directive.

The registration fee is without doubt a ‘consumption tax’, since it is charged on a consumer good, it is calculated on the basis of the economic value of that good and it is charged only once.

Nor can there be any doubt that it is ‘normally charged on personal property imported permanently ... by private individuals’. The fact that it is not charged until the vehicle is registered does not change the fact that the registration is a prerequisite to being able to use the vehicle on the roads in Denmark. The import of a vehicle by a person transferring his residence can only have as its purpose the use of that vehicle for its intended purpose.

| — | The Commission is also of the view that the registration fee cannot be considered as being one of the ‘specific and/or periodical duties and taxes connected with the use of such property within the country’ which Article 1(2) of the directive excludes from the scope of the exemption. |
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The Commission is also of the view that the registration fee cannot be considered as being one of the ‘specific and/or periodical duties and taxes connected with the use of such property within the country’ which Article 1(2) of the directive excludes from the scope of the exemption.

That exclusion applies only to taxes relating to the actual use of the property in question and taxes which may be charged to ensure payment for services which are closely connected to the use of that property.

Article 1(2) gives three examples of such taxes which fall outside the exemption, namely ‘motor vehicle registration fees, road taxes and television licences’. A common trait of those examples is that they are not consumption taxes but rather relate to the ongoing use of the property in question or ensure that the public authorities do not bear the costs associated with the use of that property.

According to the Commission, the reference to motor vehicle registration fees must, therefore, be interpreted as referring only to the taxes relating to the actual registration of the vehicle.

This view is also supported by an examination of the different language versions of Article 1 of the directive. Apart from the German and Danish texts, which both use the same term in Article 1(1) and (2), that is, ‘Abgaben’ and ‘afgifter’, respectively, all of the other language versions use different terms in Article 1(1) and (2), namely ‘taxes’ et ‘droits’ in French, ‘taxes’ and ‘fees’ in English, etc. It is obvious that the terms ‘droits’ and ‘fees’ can only refer to fees paid for a service.

It is not possible to consider the registration fee as payment for a service, since it is calculated on the basis of the value of the motor vehicle, currently 105 % of the value, up to DKK 57 400 (corresponding to EUR 7 735) and 180 % of the residual value of the motor vehicle at the time of registration, including VAT.

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(1)  Council Directive 83/183/EEC of 28 March 1983 on tax exemptions applicable to permanent imports from a Member State of the personal property of individuals (OJ 1983 L 105, 23 April 1983, p. 64).

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