Opinion of the Advocate General — ECLI:EU:C:2003:391
Date: 2003-07-03
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Taxation;Free movement of goods;Principles, objectives and tasks of the Treaties;Value added tax;Customs Union;Free movement of workers;Internal taxation;Charges having an equivalent effect
Procedure: Reference for a preliminary ruling
Origin: Austria

Summary of the Judgment 1. Tax provisions – Harmonisation of laws – Tax exemptions in respect of the permanent import of the personal property of individuals – Directive 83/183 – Scope – Tax on consumption charged on registration of imported second-hand motor vehicles – Excluded (Council Directive 83/183, Art. 1) 2. Freedom of movement for persons – Workers – Equal treatment – Tax on registration of imported second-hand motor vehicles – Whether permissible (Arts 12 EC and 39 EC) 3. Tax provisions – Internal taxation – Tax on registration of imported second-hand motor vehicles – Classified as internal taxation and not as a charge having equivalent effect to a customs duty (Arts 23 EC, 25 EC and 90 EC) 4. Tax provisions – Internal taxation – Tax on registration of imported second-hand motor vehicles – Amount of the tax not exceeding the residual tax incorporated in the value of similar vehicles in the national market – Whether permissible – Additional tax – Not permissible (Art. 90 EC) 1. Directive 83/183 on tax exemptions applicable to permanent imports from a Member State of the personal property of individuals does not preclude the imposition of a tax on consumption charged on registration of imported second-hand motor vehicles on a private individual from one Member State who, on taking up residence in another Member State because of a change of place of work, imports his or her car into the latter State, since the operative event attracting that tax is first-time registration in the State, which is not necessarily linked to the act of importation. Thus such a tax must be regarded as falling outside the scope of the exemption in Article 1(1) of the directive. (see paras 47, 49) 2. Articles 39 EC and 12 EC do not preclude the imposition of a consumption tax charged on registration of imported second-hand motor vehicles on a private individual from one Member State who on taking up residence in another Member State because of a change of place of work imports his or her car into the latter State. Although it is true that such a tax is likely to have a negative bearing on the decision of migrant workers to exercise their right to freedom of movement, the Treaty offers, however, no guarantee to a worker that transferring his activities to a Member State other than the one in which he previously resided will be neutral as regards taxation. Given the disparities in the legislation of the Member States in this area, such a transfer may be to the worker’s advantage in terms of indirect taxation or not, according to circumstance. It follows that, in principle, any disadvantage, by comparison with the situation in which the worker pursued his activities prior to the transfer, is not contrary to Article 39 EC if the legislation in question does not place that worker at a disadvantage as compared with those who were already subject to it. (see paras 54-55, 60, operative part 1) 3. A tax on consumption charged on registration of imported second-hand motor vehicles constitutes internal taxation of which the compatibility with Community law must be examined not under Articles 23 EC and 25 EC, relating to charges having equivalent effect, but under Article 90 EC relating to internal taxation, since it is manifestly of a fiscal nature and is charged not by reason of the vehicle crossing the border of the Member State which established it, but in view of other operative events, of which first-time registration of the vehicle in that State is one, and thus forms part of a general system of internal dues applying systematically to categories of products. (see paras 64-65, 81, operative part 2) 4. Article 90 EC must be interpreted as meaning that it does not preclude a tax on consumption charged on registration of imported second-hand motor vehicles to the extent that the charges to that tax precisely reflect the actual depreciation of second-hand vehicles imported by private individuals and produce the desired outcome that the tax charged on imported second-hand vehicles in no case exceeds the amount of the residual tax incorporated in the value of similar second-hand vehicles already registered in the State. However, that obligation precludes the imposition, in the case of the importation by a private individual of a second-hand car from another Member State, of a 20% surcharge of the tax in question since that 20% surcharge is generally assessed only on the base tax charged on imported second-hand vehicles and applies only in exceptional circumstances to that charged on purely domestic transactions. (see paras 81, 87, 89 operative part 3-4)