Opinion of the Advocate General — ECLI:EU:C:2006:561
Date: 2006-09-14
Language of the case: Greek
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Taxation
Procedure: Action for failure to fulfil obligations - successful;Action for failure to fulfil obligations - unfounded
Origin: Greece

Summary of the Judgment 1. Tax provisions – Harmonisation of laws – Tax exemptions for the temporary importation of means of transport (Council Directive 83/182, Art. 7(1)) 2. Tax provisions – Harmonisation of laws – Tax exemptions for the temporary importation of means of transport (Council Directive 83/182) 3. Tax provisions – Harmonisation of laws – Tax exemptions for the temporary importation of means of transport (Council Directive 83/182) 4. Tax provisions – Harmonisation of laws – Tax exemptions for the temporary importation of means of transport (Council Directive 83/182) 5. Tax provisions – Harmonisation of laws – Tax exemptions for the temporary importation of means of transport (Council Directive 83/182) 6. Tax provisions – Harmonisation of laws – Tax exemptions for the temporary importation of means of transport (Council Directive 83/182) 1. For the purposes of determining the place of normal residence within the meaning of Article 7(1) of Directive 83/182 on tax exemptions within the Community for certain means of transport temporarily imported, both the occupational and personal ties of the person concerned to a given place, as well as the duration of those ties, must be taken into consideration and, where those ties are not concentrated in a single Member State, primacy must be given to personal ties over occupational ties. In assessing the personal and occupational ties of the person concerned, all the relevant facts must be taken into consideration, such as, in particular, his actual presence and that of the members of his family, availability of accommodation, the place where business is conducted and the place where his property interests are situated. In the first resort, it is for the competent administrative authorities of the Member States to assess and weigh all the relevant facts which characterise each case. (see paras 45-46) 2. The mere fact that an abstract national rule categorises as a criminal offence conduct which consists in the evasion of the customs and tax provisions normally applicable cannot per se constitute failure by a Member State to fulfil its obligations under Directive 83/182 on tax exemptions within the Community for certain means of transport temporarily imported. The requirements of enforcement and prevention may justify a Member State in setting penalties at a certain level of severity, but it is nevertheless possible that those penalties may, in certain circumstances, prove to be disproportionate. (see para. 72) 3. A Member State which provides that in the event of possession or use in its territory of a vehicle registered in another Member State by an individual who has his normal residence in national territory, the criminal proceedings provided for as a matter of course will not be brought if the person concerned pays the registration fee charged and at the same time refrains from seeking, in relation to the act leading to the imposition of that fee, the legal remedies provided for under national law fails to fulfil its obligations under Directive 83/182 on tax exemptions within the Community for certain means of transport temporarily imported. Such a system may deprive individuals of the effective judicial protection intended by Community law by inducing them, for the purposes of avoiding criminal proceedings, to refrain from seeking the legal remedies provided for as a matter of course by national law. (see paras 77, 97, operative part) 4. Penalties laid down by a Member State for cases where a vehicle covered by the temporary tax exemption is driven in national territory by a person other than the beneficiary of the exemption, or where the vehicle in question is driven by a person other than the beneficiary of the tax exemption but, at the time when the offence is committed, the beneficiary is not in national territory, falls outside of the scope of Directive 83/182 on tax exemptions within the Community for certain means of transport temporarily imported. (see paras 80-81) 5. A Member State which provides that, where fines are imposed for infringement of the applicable legislation, vehicles are also to be temporarily immobilised, and released on payment of the fines and any other charges owed, fails to fulfil its obligations under Directive 83/182 on tax exemptions within the Community for certain means of transport temporarily imported. Since such a measure may deny the beneficiary the use of his vehicle for a lengthy period, and given the importance which the right to drive a vehicle has on the actual exercise of the rights relating to the free movement of persons, it is disproportionate in relation to the objective pursued, which is the collection of fines, an objective which can be attained by means more consistent with Community legislation. (see paras 83, 97, operative part) 6. A Member State which provides that persons who are the victims of the theft of a second vehicle covered by the temporary importation arrangements in the Member State concerned are required to pay the registration fee does not thereby fail to fulfil its obligations under Directive 83/182 on tax exemptions within the Community for certain means of transport temporarily imported. There is no evidence in the directive, moreover, to justify the conclusion that the directive sought to extend the exemption and thus restrict the tax jurisdiction of Member States in circumstances where the link between the beneficiary of the exemption and the vehicle covered by that exemption is broken, in particular in the event of theft where it is very likely that the vehicle will remain in use in the territory of the Member State concerned whilst being driven by a person who has no connection with the beneficiary of the exemption. Such a case is not addressed by the directive and falls within the legislative power of the Member States. (see para. 94)