Opinion of the Advocate General — ECLI:EU:C:2018:760
Date: 2018-09-20
Language of the case: Dutch
Subject matter: Free movement of goods;Measures having equivalent effect;Quantitative restrictions;Transport
Procedure: Reference for a preliminary ruling;Reference for a preliminary ruling - decision unnecessary
Origin: Netherlands

summary data. The referring court states that it follows from an inspection of the vehicle, carried out in February 2014, that it is now made up of an original Bentley Mark VI chassis, an 8-cylinder Rolls Royce engine, and new bodywork of different appearance, on the model of a Bentley Speed Six, and that the powertrain and chassis have largely been preserved. In view of the alterations made to the original model, the RDW rejected, by decision of 10 February 2014, the application for registration in the vehicle register submitted by X and Y. 26 On the basis of a second registration certificate issued by the competent Belgian authority on 19 May 2014, X and Y submitted on 4 June 2014 a new application for registration. By letter of 18 July 2014, the RDW stated that a request for information had been sent to the Belgian authorities. It is apparent from the replies to that request that the Belgian authorities, in order to issue the registration certificate, used the original UK registration certificate from 1950. In view of the above, the RDW, by decision of 27 August 2014, rejected the second application for registration. 27 The vehicle manufactured by Alvis, for which a UK registration certificate was issued on 14 October 2013 on the basis of the data contained in the accompanying documents issued by the manufacturer, had also been considerably altered. Accordingly, in order to make a decision on the application for registration lodged by Z, the RDW requested information from the competent UK authority. The latter stated that it had registered the vehicle on the basis of data in the accompanying documentation issued by the manufacturer, and on the basis of photographs and information from a car owners’ club. In addition, the RDW couldn’t get a response to the question concerning the data pertaining to the Alvis on the basis of which the UK registration certificate was issued. By decision of 29 September 2014, the RDW rejected Z’s application for registration. 28 The RDW stated in its decisions of 10 February 2014 and 29 September 2014 that it refused registration on the ground that, because they did not satisfy the technical requirements laid down by Directive 2007/46, the vehicles in question were not vehicles within the meaning of both Article 3 of that directive and Article 2(a) of Directive 1999/37, as a result of which that directive was not applicable in the present case. In any event, to the extent that those vehicles are covered by Directive 1999/37, the RDW took the view that the registration certificates which had already been issued for those vehicles by the authorities of other Member States were not harmonised registration certificates within the meaning of that directive and therefore did not need to be recognised on the basis of the latter. In addition, the RDW took the view that the certificates did not permit those vehicles to be identified. Finally, according to the RDW, the vehicles concerned, in their current state, were never put into circulation on the date on which they obtained their first registration certificate, respectively in 1950 and 1938, and it was not clear from the evidence available to it that they had obtained individual approval to be put into circulation after they had been altered. 29 X and Y, on the one hand, and Z, on the other, brought proceedings against the decisions to refuse registration concerning them. According to the courts before which proceedings were brought at first instance, the vehicles in question did fall within the scope of Directive 1999/37, as a result of which that directive was applicable and the vehicles had to be identified on the basis of their registration certificates, which are harmonised certificates for the purposes of that directive. Those courts accordingly took the view that the RDW was obliged to issue a Netherlands registration certificate to X and to Y and that the RDW was to carry out a fresh appraisal of the application for registration by Z. 30 The RDW appealed against those judgments before the referring court. X and Y also appealed to that court against the judgment concerning them. 31 The referring court notes that the dispute concerns the question whether the RDW infringed Article 25b of the Registration Certificate Rules, as interpreted in the light of Article 4 of Directive 1999/37, by not recognising, for registration in the Netherlands, the registration documents for the Bentley and Alvis vehicles, which entails determining whether that directive is applicable. That court adds that, in the present case, those documents formally comply with the template laid down by the directive, but that certain mandatory data, which could easily be ascertained during the inspection of the vehicle, did not appear on those documents. Lastly, the referring court asks whether the RDW can, in response to a request for recognition of the registration certificate issued by another Member State, test the vehicles in question in order to check whether they meet the technical requirements laid down by Directive 2007/46. 32 Taking the view that the resolution of the disputes before it, and which were joined by it, required the interpretation of Directives 1999/37 and 2007/46, the Raad van State (Council of State, Netherlands) decided to stay proceedings and to refer the following questions to the Court for a preliminary ruling: ‘(1) Is Directive [1999/37] applicable to motor vehicles which existed before 29 April 2009, the date on which the Member States had to apply the laws, regulations and administrative provisions required to implement Directive [2007/46/EC]? (2) Is a motor vehicle composed, on the one hand, of essential parts which were manufactured before the application of Directive 2007/46 and, on the other hand, of essential parts which were only added after the application of that Directive, a motor vehicle which already existed before the entry into force of that Directive, or has such a motor vehicle only come into existence after the application of that Directive? (3) Having regard to Article 3(2) of Council Directive 1999/37, does the recognition obligation as referred to in Article 4 of that Directive apply in full where the data required by certain Community codes (made compulsory under the Annexes to that Directive) have not been provided in the registration certificates, but those data could easily have been obtained? (4) Is it permissible under Article 4 of Council Directive 1999/37 to recognise a registration certificate of another Member State, but to nevertheless submit the vehicle concerned to a roadworthiness test within the meaning of Article 24(6) of Directive 2007/46 and, if the vehicle fails to meet the technical requirements of the Member State, to conclude that the registration certificate must be refused?’ Consideration of the questions referred The first question 33 By its first question, the referring court asks, in essence, whether Article 2(a) of Directive 1999/37, read in conjunction with Article 3(11) and (13) of Directive 2007/46, must be interpreted as meaning that Directive 1999/37 applies to the documents issued by Member States at the time of the registration of vehicles manufactured before 29 April 2009, the date of expiry of the period for transposition of Directive 2007/46. 34 Under Article 2 of Directive 1999/37, a vehicle is to mean, for the purposes of that directive, any vehicle as defined in Article 2 of Directive 70/156. 35 It follows that, as from the date of its adoption, Directive 1999/37 was intended to apply to vehicles put on the market before 29 April 2009. 36 That finding is corroborated by Article 3(2) of Directive 1999/37, pursuant to which, where a new registration certificate is issued for a vehicle registered prior to the implementation of that directive, Member States are to use a certification model as defined in that directive and may limit the particulars shown therein to those for which the required data are available. 37 That provision constitutes a specific rule for vehicles which were registered before the implementation of Directive 1999/37, whose time limit for transposition, laid down in Article 8 of that Directive, was 1 June 2004. 38 That finding is also borne out by the objective pursued by Directive 1999/37, which is, as is apparent from recital 6 thereof, to facilitate through the harmonisation of the registration certificate, the re-entry into service of vehicles that have previously been registered in another Member State. The exclusion from the scope of that directive of registration documents for vehicles manufactured before 29 April 2009 issued by Member States would run counter to that objective. 39 The mere fact that Directive 70/156 was repealed with effect from 29 April 2009 by Directive 2007/46, Article 49 of which provides that references to that directive shall be construed as references to Directive 2007/46 and are to be read in accordance with the correlation table in Annex XXI, does not alter that finding. 40 Admittedly, it is clear from Annex XXI that the references to Article 2 of Directive 70/156 should be read as references to Article 3 of Directive 2007/46. It is also true that, according to paragraph 11 of Article 3, read in conjunction with paragraph 13 thereof, a motor vehicle is either complete, completed, or incomplete and that, according to paragraphs 19 to 21 of Article 3, the incomplete vehicle must be completed in accordance with the technical requirements imposed by Directive 2007/46, while complete and completed vehicles meet those requirements. 41 However, the reference made to Article 3 of Directive 2007/46, for the sole purpose of defining the term ‘vehicle’, cannot be interpreted as enforcing compliance with those technical requirements for vehicles put into circulation before 29 April 2009. 42 It should be noted, as the Commission has done, that such technical requirements are applicable, under Article 1 of Directive 2007/46 itself, only upon the approval, from 29 April 2009, of new vehicles. 43 The answer to the first question is thus that Article 2 of Directive 1999/37, read in conjunction with Article 3(11) and (13) of Directive 2007/46, must be interpreted as meaning that Directive 1999/37 is applicable to the documents issued by Member States at the time of the registration of vehicles manufactured before 29 April 2009, the date of expiry of the period for transposition of Directive 2007/46. The second question 44 Having regard to the reply given to the first question, there is therefore no need to answer the second question. The third question 45 By its third question, the referring court asks, in essence, whether Article 4 of Directive 1999/37, read in conjunction with Article 3(2) of that directive, must be interpreted as meaning that the authorities of the Member State in which the new registration of a second-hand vehicle is sought are entitled to refuse to recognise the registration certificate issued by the Member State in which the vehicle was previously registered, on the grounds that some of the mandatory certificate data are missing but can be easily found. 46 First of all, it is apparent from the very wording of Article 4 of Directive 1999/37, which provides that a registration certificate issued by a Member State in accordance with the template set out in the annex to that directive ‘shall be recognised’ by the other Member States for the re-registration of the vehicle in another Member State, that that provision does not leave any discretion to the Member States as regards compliance with the principle of recognition of vehicle registration certificates (judgment of 6 September 2012, Commission v Belgium, C‑150/11, EU:C:2012:539, paragraph 73). 47 The Court has ruled that Directive 1999/37 does not allow Member States to require a document other than the registration certificate when registering a vehicle previously registered in another Member State (see, to this effect, judgment of 6 September 2012, Commission v Belgium, C‑150/11, EU:C:2012:539, paragraph 79). 48 However, the Court considered that a Member State was entitled, before registering a vehicle previously registered in another Member State, to identify that vehicle and to require for that purpose that the vehicle be presented for a physical examination, in order to verify whether that vehicle was actually present on its territory and corresponded to the data mentioned in the registration certificate (see, to that effect, judgment of 20 September 2007, Commission v Netherlands, C‑297/05, EU:C:2007:531, paragraphs 54, 55 and 57 to 63). 49 Such a presentation was classified by the Court as a mere administrative formality, which does not introduce any additional testing, but which is integral to the actual processing of the application for registration and also to the conduct of the procedure (see, to that effect, judgment of 20 September 2007, Commission v Netherlands, C‑297/05, EU:C:2007:531, paragraph 58). 50 With respect to the objectives of Directive 1999/37, it should be recalled that that directive seeks to help towards the free movement, on the roads in the territory of the other Member States, of vehicles registered in a Member State by laying down, as a prerequisite for registering a vehicle that has previously been registered in another Member State, the presentation of a document certifying that registration and the technical characteristics of the vehicle, in order to facilitate the re-entry into service of such vehicles in another Member State and to contribute to the proper functioning of the internal market (judgment of 6 September 2012, Commission v Belgium, C‑150/11, EU:C:2012:539, paragraph 74). 51 Moreover, according to recital 4 of that directive, the content of the registration certificate must make it possible to check that the holder of a driving licence drives solely those categories of vehicles for which he is authorised, that check helping to improve road safety. 52 In that regard, the registration certificate issued previously by a Member State must allow the identification of the vehicle concerned, which must correspond to the data indicated on that certificate for its re-registration in another Member State (see, to that effect, judgment of 20 September 2007, Commission v Netherlands, C‑297/05, EU:C:2007:531, paragraphs 54 to 56), in order to ensure that road safety requirements are met. 53 It should be added that, under Article 3(2) of Directive 1999/37, where, as in the disputes in the main proceedings, a new registration certificate is issued for a vehicle registered prior to the implementation of that directive on 1 June 2004, the Member States may limit the particulars shown therein to those for which the required data are available. 54 As the Advocate General observed in point 67 of his Opinion, the use of such exceptions by Member States does not mean that the registration certificate concerned should no longer be recognised. 55 However, inasmuch as it is apparent from the request for a preliminary ruling that, at the very least, some of the missing data on the registration certificates at issue in the main proceedings, such as the number of places, which are compulsory, can be easily found, those data must be regarded as available when preparing those certificates. In addition, the vehicles at issue in the main proceedings having undergone considerable changes, some important technical characteristics do not appear in those registration certificates and the RDW considered that it was not able to identify those vehicles. 56 In that regard, it should be noted that, as is apparent from paragraph 48 of the present judgment, the data mentioned on a registration certificate issued before the implementation of that directive must correspond to the vehicle described in that certificate and must permit the identification of the vehicle in question on the basis of a simple examination not entailing any additional testing, as referred to in paragraphs 48 and 49 of the present judgment. 57 Where this is not the case, the authorities of the Member State where the new registration of a vehicle previously registered in another Member State is sought shall be entitled to refuse recognition of such a certificate. 58 As regards the situation at issue in the main proceedings, it is for the referring court to verify not only that the data entered on the certificates at issue in the main proceedings correspond to the vehicles which they describe, but also that they permit their identification. 59 In the light of the foregoing, the answer to the third question is that Article 4 of Directive 1999/37, read in conjunction with Article 3(2) of that directive, must be interpreted as meaning that the authorities of the Member State in which the new registration of a second-hand vehicle is sought are entitled to refuse to recognise the registration certificate issued by the Member State in which the vehicle was previously registered where some mandatory data are missing, the data mentioned on the certificate do not match the vehicle and the certificate does not make it possible to identify the vehicle. The fourth question 60 By its fourth question, the referring court asks, in essence, whether Article 24(6) of Directive 2007/46 must be interpreted as meaning that it permits a vehicle registered in a Member State to be made subject to a roadworthiness test where it is presented for re-registration in another Member State. 61 As has been stated in paragraph 42 of the present judgment, Directive 2007/46, including Article 24 thereof, relates only to new vehicles. 62 The vehicles at issue in the main proceedings are second-hand vehicles, manufactured in 1950 and 1938 respectively. 63 As correctly noted by the Commission, the question whether those vehicles have been altered in such a way, since the year in which they were manufactured, that they must be treated as new vehicles, entailing a possible individual approval thereof, does not arise in the disputes in the main proceedings, since it is not disputed that those vehicles have not undergone any substantial alterations between the dates on the registration certificates and the dates of the applications for registration in the Netherlands vehicle register. 64 In those circumstances, such vehicles cannot be regarded as new within the meaning of Directive 2007/46, as a result of which Article 24(6) of the directive does not apply to them. 65 However, the fact that a national court has, formally speaking, worded its request for a preliminary ruling by referring to certain provisions of EU law does not preclude the Court of Justice from providing to the national court all the elements of interpretation which may be of assistance in adjudicating on the case pending before it, whether or not that court has referred to them in its questions. It is for the Court to extract from all the information provided by the national court, in particular from the grounds of the order for reference, the points of EU law which require interpretation, having regard to the subject matter of the dispute (judgment of 29 September 2016, Essent Belgium, C‑492/14, EU:C:2016:732, paragraph 43 and the case-law cited). 66 In the present case, it is apparent from the order for reference that the RDW noted that the vehicles at issue in the main proceedings had changed significantly since they first entered into service and that the certificates submitted contained certain omissions. As argued by the Commission, although such findings raised doubts about the road safety of such vehicles, which it is for the referring court to verify, the situation at issue in the main proceedings may fall within the scope of Directive 2009/40. 67 In that regard, Article 3(2) of that directive provides that each Member State is to recognise the proof issued in another Member State showing that a motor vehicle registered on the territory of that other State has passed a roadworthiness test complying with at least the provisions of the directive on the same basis as if it had itself issued the proof. By contrast, Article 5(a) of that directive expressly provides that Member States may bring forward the date for the first compulsory roadworthiness test and, where appropriate, require the vehicle to be submitted for testing prior to registration. 68 As is apparent from the case-law of the Court, Member States are in principle required to take due account, for vehicles previously registered in other Member States, of the results of roadworthiness tests carried out in those Member States, and those vehicles cannot be generally and systematically made subject to a roadworthiness test (see, to that effect, judgments of 5 June 2008, Commission v Poland, C‑170/07, not published, EU:C:2008:322, paragraphs 39 and 44, and of 6 September 2012, Commission v Belgium, C‑150/11, EU:C:2012:539, paragraph 62). Nevertheless, taking account of the importance of the objective of ensuring road traffic safety within the Union pursued by Directive 2009/40, as set out in recital 2 thereof, it is open to Member States to require an imported vehicle to be submitted for testing prior to registration in that State if, despite taking into account the results of roadworthiness tests carried out in another Member State, there are concrete indications that the vehicle does indeed present a risk to road safety (see, to that effect, judgment of 6 September 2012, Commission v Belgium, C‑150/11, EU:C:2012:539, paragraphs 59 to 61). 69 Consequently, the answer to the fourth question is that Article 24(6) of Directive 2007/46 must be interpreted as meaning that the scheme provided for therein does not apply to a second-hand vehicle already registered in a Member State which is, on the basis of Article 4 of Directive 1999/37, submitted for re-registration to another Member State authority which is competent in that regard. However, if there is evidence that the vehicle presents a risk to road safety, that authority may, pursuant to Article 5(a) of Directive 2009/40, require the vehicle to be submitted for testing prior to registration. Costs 70 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 (Fourth Chamber) hereby rules: 1. Article 2(a) of Council Directive 1999/37/EC of 29 April 1999 on the registration documents for vehicles, read in conjunction with Article 3(11) and (13) of Directive 2007/46/EC of the European Parliament and of the Council of 5 September 2007 establishing a framework for the approval of motor vehicles and their trailers, and of systems, components and separate technical units intended for such vehicles, must be interpreted as meaning that Directive 1999/37 is applicable to the documents issued by Member States at the time of the registration of vehicles manufactured before 29 April 2009, the date of expiry of the period for transposition of Directive 2007/46. 2. Article 4 of Directive 1999/37, read in conjunction with Article 3(2) of that directive, must be interpreted as meaning that the authorities of the Member State in which the new registration of a second-hand vehicle is sought are entitled to refuse to recognise the registration certificate issued by the Member State in which the vehicle was previously registered where some mandatory data are missing, the data mentioned on the certificate do not match the vehicle and the certificate does not make it possible to identify the vehicle. 3. Article 24(6) of Directive 2007/46 must be interpreted as meaning that the regime provided for therein does not apply to a second-hand vehicle already registered in a Member State which is, on the basis of Article 4 of Directive 1999/37, submitted for re-registration before another Member State authority which is competent in that regard. However, if there is evidence that the vehicle presents a risk to road safety, that authority may, pursuant to Article 5(a) of Directive 2009/40/EC of the European Parliament and of the Council of 6 May 2009 on roadworthiness tests for motor vehicles and their trailers, require the vehicle to be submitted for testing prior to registration. [Signatures] * Languages of the case: English and Dutch.