Information;Order — ECLI:EU:C:2020:703
Date: 2020-09-10
Language of the case: German
Court formation: Sixth Chamber
Subject matter: Citizenship of the Union;Free movement of capital
Procedure: Reference for a preliminary ruling
Origin: Belgium

Anonymised version 
Translation  C-41/20 — 1 
Case C-41/20 
Request for a preliminary ruling 
Date lodged: 
28 January 2020 
Referring court: 
Gericht Erster Instanz Eupen (Belgium) 
Date of the decision to refer: 
6 January 2020 
Applicant: 
DQ 
Defendant: 
Wallonische Region 
  
EN 
REQUEST FOR A PRELIMINARY RULING OF 6. 1. 2020 — CASE C-41/20 
 
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[…] 
Judgment of: 6 January 2020 
[…] 
Gericht Erster Instanz Eupen (Court of First Instance, Eupen, Belgium) 
Judgment 
of the Fourth Chamber, sitting in 
proceedings relating to tax matters 
[…] [Or. 2] 
In the case of 
DQ, a German national, born in Düsseldorf (Germany), resident in Eupen,  
APPLICANT, 
[…] 
v 
WALLONISCHE REGION (Walloon Region, Belgium), represented by the 
Minister-President, having its seat in […] Jambes, […] 
DEFENDANT, 
[…] 
Procedure 
The tax appeal was lodged at the Registry on 9 April 2019. 
The hearing was ordered for 10 April 2019 and the case was listed for hearing in 
open court on 6 May 2019. 
Following rescheduling […], the case was heard in open court on 2 December 
2019. 
[…] 
German was used throughout the proceedings, in accordance with the provisions 
of the Law of 15 June 1935 on the use of languages in judicial matters. 
WALLONISCHE REGION 
 
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Facts 
On 6 July 2017, DQ was checked by officers of the Öffentlicher Dienst der 
Wallonie (Walloon Public Service, Belgium) while driving a Daimler Chrysler 
vehicle […] (registered in Germany) […]. 
ER, who is resident in Germany, owns the vehicle in question, which was 
registered in Germany on 30 June 2017 […] after she purchased it from a third 
party in Germany. [Or. 3] 
On the day of the contested report of 6 July 2017, the applicant had a doctor’s 
appointment […] in Aachen […]. As DQ was very ill, he asked his acquaintance, 
ER, if he might borrow the car in question to attend that doctor’s appointment, in 
order to avoid having to travel by public transport. ER visited DQ on the eve of 
that doctor’s appointment of 6 July 2017 in order to leave the car with him for that 
purpose. However, she did not accompany him to his doctor’s appointment and 
remained in Eupen during that time. 
During that check, the applicant stated […]: 
‘I do not agree with the report.’ 
According to the report, payment of the following taxes was demanded: 
• road tax of EUR 383.40 
• a 10% surcharge of EUR 38.34 
• registration tax of EUR 61.50 
• pollution tax of EUR 600.00 
• a fine of EUR 843.48 
• TOTAL EUR 1 926.72 
In that regard, the Walloon Region officers noted as follows in their fact-finding 
and removal report. 
• ‘Road tax does not appear to have been paid; 
(…) 
• The driver, who is resident in Belgium and driving a vehicle registered 
abroad, does not have the right to claim one of the exemptions provided for 
in Article 3(2) of the Royal Decree of 20 July 2001 on the registration of 
vehicles, as amended by the Royal Decree of 18 June 2014 (Moniteur belge 
of 5 September 2014), namely: 
REQUEST FOR A PRELIMINARY RULING OF 6. 1. 2020 — CASE C-41/20 
 
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• … 
• A vehicle provided free of charge to a natural person referred to in 
paragraph 1 for a maximum of one month. A document issued by the 
foreign owner granting permission for the vehicle to be used for a 
certain period of time, the end date of which must be stated, must be 
carried in the vehicle; 
• … 
• The vehicle is owned by ER, resident in Düsseldorf, Germany. 
(…) 
• The aforesaid driver DQ did not pay the proposed sum of EUR 1 926.72 (see 
details above). 
• The abovementioned vehicle was removed from the possession of the 
aforesaid DQ, resident in Eupen, Belgium. 
He was advised that he is not allowed to move or sell the vehicle without the 
prior consent of the reporting officer. 
(…) 
We advised him that a report is being prepared against him on the grounds of this 
infringement. (…) In witness whereof, completed in the year and on the date 
stated above. 
(Signatures) 
Reporting officers (…) Driver (…)’ 
‘The vehicle/document removed was returned to the aforesaid DQ on 12 July 
2017 on expiry of the 96-hour period. [Or. 4] 
The aforesaid DQ received the document in the same state as at the time of 
removal. Thus, the report was not cancelled. 
In witness whereof, (Signature)’ 
The applicant subsequently provided a document on 12 July 2017 from which it 
follows that he was allowed to use ER’s car during the period from 1 July 2017 to 
30 July 2017 […]. 
On 6 July 2018, the applicant received a tax notice for the aforesaid sum of 
EUR 1 926.72 […]. 
WALLONISCHE REGION 
 
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On 22 July 2018, following receipt of the tax notice, the applicant lodged an 
objection to the notice with the Walloon Region […] and thereby claimed that that 
notice should be cancelled. 
The objection was dismissed by the Walloon Region by administrative decision of 
11 January 2019 on the following grounds […]: 
‘The Daimler Chrysler vehicle […] is registered to ER, resident in 
Düsseldorf, (Germany); 
No documents were being carried at the time of the check that permitted DQ 
to drive the vehicle in accordance with Article 3(2) of the Royal Decree of 
20 July 2001. 
The following document was subsequently provided on 12 July 2017: copy 
of permission to drive abroad in the period from 1 July to 31 July 2017, 
issued by ER in the name of DQ and dated 1 July 2017. 
(…) 
DQ has not registered any vehicle in Belgium. 
Having examined the file, we find that: 
• the necessary document, an attestation issued by the foreign owner 
that the vehicle was provided to DQ free of charge for a maximum of 
one month, was not in the vehicle; 
• the reason given under point 3 and the documents served in that 
regard do not prove that use of the vehicle was limited in time (to a 
maximum of one month).’ 
After his objection was dismissed on the substance, the applicant brought an 
action against the tax notice before the present court by inter partes application of 
9 April 2019. 
Subject matter of the proceedings 
The subject matter of the proceedings is the demand made by the Walloon 
Region for payment of EUR 1 926.72 in road tax, registration tax and other fines 
based on the fact-finding report of 6 July 2017. 
DQ contests that demand for payment and claims that he is entitled to an 
exemption, as he was given private use of the car for a limited period of time 
starting on 1 July 2017, proof of which was subsequently provided on 12 July 
2017, and that the tax notice should be cancelled and the administrative decision 
annulled. [Or. 5] 
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In the alternative, DQ requests that interim judgment be delivered and the 
present proceedings be entered on the general case list until such time as the Court 
of Justice of the European Union has answered the question referred for 
preliminary ruling by judgment of 28 March 2019 of the Court of First Instance, 
Eupen, Fourth Chamber, in Case 18/77/A and/or, in the alternative, the Court of 
First Instance in the present proceedings has referred a similar question to the 
Court of Justice for a preliminary ruling concerning infringement of the 
fundamental rights enshrined in the Treaty on the Functioning of the European 
Union (‘TFEU’), in particular freedom of movement under Articles 20 and 21 
TFEU, on the one hand, and the free movement of capital under Articles 63 and 
64 TFEU; this follows from the Court of Justice’s judgment of 26 April 2012 in 
Joined Cases C-578/10 to C-580/10. 
He therefore proposes the following questions to be referred for a preliminary 
ruling: 
‘1. Does national legislation which, as applied by the authorities, makes 
the use without any re-registration requirement of a foreign vehicle provided 
occasionally and for short periods of time to a citizen resident in Belgium by 
a citizen established in another Member State contingent upon the citizen 
resident in Belgium carrying in the vehicle the private attestation of 
permission to use the vehicle, that is, an attestation within the meaning of 
Article 3(2), point 6, of the Royal Decree of 20 July 2001 on the registration 
of vehicles, conflict with the relevant provisions of EU law, in particular 
Articles 20 and 21 of the Treaty on the Functioning of the European Union 
on freedom of movement and the free movement of capital, on the one hand, 
and/or Articles 63 and 64 of the Treaty on the Functioning of the European 
Union on the free movement of capital, on the other, as two of the four 
fundamental freedoms of the European Union? 
2. Is national legislation, as described above and applied by the Walloon 
Region, justified by requirements of public security or other protective 
measures and is compliance with the national legislation, interpreted as 
meaning that a document issued by the foreign owner of the vehicle granting 
permission to use the vehicle for a limited and specified period of time must 
be carried in the vehicle, necessary in order to attain the objective pursued 
or could the objective have been attained by other, less strict and formalistic 
means?’ 
In the further alternative, DQ claims that the court should order, first, that the 
registration tax and pollution tax be reduced based on the actual period of use and, 
second, that the fine be struck off or at least reduced to EUR 50. 
Lastly, DQ claims that the Walloon Region should be ordered to pay his costs of 
EUR 480 (that is, the basic amount in court costs). 
WALLONISCHE REGION 
 
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The Walloon Region contends that the court should dismiss the application on 
the substance and order DQ to pay its costs of EUR 480 (that is, the basic amount 
in court costs). [Or. 6] 
Appraisal 
1. Admissibility 
[…] 
The application is therefore admissible. 
2. Substance 
2.1. Respect for freedom of movement and the free movement of capital 
enshrined in the Treaty on the Functioning of the European Union (‘TFEU’) 
and the need to refer a question to the Court of Justice of the European 
Union (the ‘Court of Justice’) for a preliminary ruling in order to give 
judgment. 
DQ argues that it has only been proven that the car was used once within the one-
month period. He claims that he is very ill and had to use the car to travel to 
hospital in Aachen, and that there is no general presumption of abuse of the rules 
laid down by the Royal Decree of 20 July 2001. Moreover, he was discriminated 
against while driving a borrowed car registered abroad, compared to other 
Belgians who drive a car borrowed and registered in Belgium for private 
purposes. 
Furthermore, every minor restriction must be condemned. In this case, the amount 
of the penalty (that is, the amount of the taxes and the fine) is disproportionate to 
the infringement, namely providing the documents only after the check, rather 
than carrying them in the vehicle on the day of the check. 
That conclusion follows from the case-law established by the order in Case 
C-315/19 in the field of the free movement of workers, in so far as the Court of 
Justice held that having to carry at all times documents that prove exemption from 
registration […] infringes Article 45 TFEU. 
The applicant argues that the principle of the free movement of workers, as the 
subject matter of the abovementioned questions referred to the Court of Justice for 
a preliminary ruling, is ultimately a specific application of the basic principle of 
freedom of movement of persons within the European Union under Articles 20 
and 21 TFEU, so that the answer to those questions referred for a preliminary 
ruling should also apply in the present case. 
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In the alternative and based on the additional restriction on the free movement of 
capital as a further fundamental freedom of the EU, the applicant claims that a 
similar question should be referred to the Court of Justice for a preliminary ruling 
in the present proceedings. 
The Walloon Region, for its part, contends that the check was carried out on 
6 July 2017 and that the car was only registered in Germany on 30 June 2017. 
Moreover, the necessary attestation was not in the vehicle at the time of the check, 
so that the contested taxes should be applied in accordance with the case-law of 
the Apellationshof Lüttich (Court of Appeal, Liège, Belgium). [Or. 7] 
In the present case, the permission granted to the applicant does not appear to be 
credible, in so far as having a vehicle driven from Düsseldorf rather than 
travelling 20km by bus is questionable. The vehicle had in fact never been used in 
Germany. The exemption does not therefore apply, and that is what distinguishes 
the present case. 
The defendant argues that the case-law established by Case C-315/19 only applies 
in connection with Article 45 TFEU and cannot be applied to a private individual. 
A private individual is therefore required to carry the attestation of permission to 
use in the vehicle. Lastly, any such attestation should always be carried in the 
vehicle, as it is only valid for one month. The attestation may be provided 
subsequently in the case of a company car, but that is not possible for a private 
individual as otherwise the attestation could repeatedly be postdated. 
Therefore, for the defendant, there is no need to refer a question for a preliminary 
ruling. 
The court finds that the question of principle that arises is whether the 
requirement that documents must be carried at all times in a vehicle borrowed for 
private purposes in order to fulfil the conditions for exemption from payment of 
tax infringes Articles 20, 21, 63 and 64 TFEU in that it is possibly discriminatory 
and/or possibly disproportionate. 
The contested Article 3(2), point 6, of the Royal Decree of 20 July 2001 on the 
registration of vehicles (available at www.fisconetplus.be and www.just.fgov.be), 
in its current version, which was already in force when the contested taxes were 
levied, provides as follows (free translation): 
‘(2) In the cases referred to below, the registration in Belgium of vehicles 
registered abroad, and put into circulation by persons mentioned in 
paragraph 1 is not compulsory for: 
(…) 
6.  a vehicle provided free of charge to a natural person referred to in 
paragraph 1 for a maximum of one month; a document issued by the foreign 
WALLONISCHE REGION 
 
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owner granting permission for the vehicle to be used for a certain period of 
time, the end date of which must be stated, must be carried in the vehicle.’ 
According to the Report to the King (2001), the objective of that royal decree was 
to regulate the increasing use of company cars from abroad and to penalise other 
cases in which foreign number plates are used in Belgium in order to avoid 
Belgian tax. 
Article 20(2)(a) TFEU provides that citizens of the Union are to enjoy the rights 
and be subject to the duties provided for in the Treaties. Those rights include the 
right to move and reside freely within the territory of the Member States. [Or. 8] 
Freedom of movement in accordance with Articles 20 and 21 TFEU means that, in 
addition to the four fundamental freedoms of the EU, all citizens of the Union can 
move freely within it. That includes, inter alia, freedom of movement for workers 
in accordance with Article 45 TFEU and freedom of establishment in accordance 
with Article 49 TFEU. 
By its order in Case C-315/19, the Court of Justice found as follows with regard to 
the requirement that documents must be carried in a vehicle at all times for the 
purposes of Article 45 TFEU: 
‘33 In that regard, it must be recalled that, as regards in particular the 
objectives of combating tax evasion in the field of registration tax and tax on 
motor vehicles and of ensuring roadside checks are effective, the Court has 
held that a provision such as that at issue in the main proceedings which, as 
in the present case, did not allow documents proving that the person 
concerned fulfilled the conditions for the derogation from the registration 
requirement to be produced within a short period of time after the check and 
which therefore excluded any possibility of rectifying the situation of the 
person concerned, was not proportionate, in the light of those objectives 
(see, to that effect, order of 10 October 2013, Kovács, C-5/13, not published, 
EU:C:2013:705, paragraphs 33 to 38, and judgment of 29 October 2015, 
Nagy, C-583/14, EU:C:2015:737, paragraphs 32 to 34). 
34 Furthermore, so far as prevention of abuse is concerned, it follows 
from the case-law that, although individuals cannot improperly or 
fraudulently take advantage of provisions of EU law, the fact that a worker 
resident in Belgium uses in that Member State a company car made 
available to him by the company for which he works established in another 
Member State cannot form the basis for a general presumption of abuse 
(see, to that effect, judgment of 15 December 2005, Nadin and Nadin-Lux, 
C-151/04 and C-152/04, EU:C:2005:775, paragraphs 45 and 46). 
35 Likewise, road safety cannot be relied upon in the present case either, 
since the vehicle in question is registered in another Member State and has 
therefore undergone roadworthiness testing, the results of which must be 
recognised by the other Member States (see, to that effect, judgments of 
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15 December 2005, Nadin and Nadin-Lux, C-151/04 and C-152/04, 
EU:C:2005:775, paragraph 50, and of 24 January 2019, RDW and Others, 
C-326/17, EU:C:2019:59, paragraph 67). 
36 In light of all the foregoing, the answer to the questions referred is that 
Article 45 TFEU must be interpreted as precluding legislation of a Member 
State under which a worker resident in that Member State may rely on a 
derogation from the requirement to register in that Member State a vehicle 
registered in another Member State and provided to him by his employer 
established in that other Member State only if he carries the documents 
proving that he fulfils the conditions for that derogation with him in the 
vehicle at all times.’ 
A similar question has now arisen in the present case in connection with the 
private use of a vehicle registered abroad, whereby the Walloon Region takes the 
view that the abovementioned case-law does not apply in this case. 
However, based on the aforesaid report, the levying of the contested taxes may 
well be discriminatory, since payment of the taxes at issue in accordance with the 
contested fact-finding and removal report was demanded because the applicant 
borrowed and used for a limited period of time a car registered in a Member State 
other than the Member State in which the check was carried out, without carrying 
the documents that must be carried in the vehicle at the time of the check, whereas 
no such requirement applies to and no such tax is levied on persons who borrow 
and use a vehicle registered in Belgium. [Or. 9] 
Furthermore, the total amount of the taxes levied together with a fine, and the fact 
that the documents provided subsequently were disregarded, does not appear to 
the court to be proportionate to the objective of obtaining payment of the taxes 
by the taxable person. That disproportionate charge might also constitute a 
restriction on the exercise of the fundamental freedoms of the European Union for 
a private individual who borrows and uses for private purposes and for a limited 
period of time a car registered in a different Member State from the Member State 
in which the check was carried out. 
According to the Court of Justice’s case-law, tax issues, in particular the risk of 
losses in tax revenue, cannot be used to justify a restriction on the exercise of the 
fundamental freedoms of the European Union (judgments of 7 September 2004, 
Manninen, C-319/02, and of 15 September 2005, Commission v Kingdom of 
Denmark and Kingdom of Finland, C-464/02). 
Furthermore, every minor restriction of the fundamental freedoms of EU law must 
be condemned. 
The court therefore considers it necessary, in order to give judgment, for the Court 
of Justice to answer the following questions, referred for a preliminary ruling, 
before any further decision is taken on the substance. 
WALLONISCHE REGION 
 
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[…] [Questions referred for a preliminary ruling, see below] 
2.2. Other arguments of the parties and costs 
[…] [Or. 10] 
Decision 
[…] 
The following questions are referred to the Court of Justice of the European 
Union for a preliminary ruling within the meaning of Article 267 TFEU in order 
to resolve the present dispute before any further decision is taken on the 
substance of the matter. 
1. Does national legislation which, as applied by the authorities, makes 
the use without any re-registration requirement of a foreign vehicle provided 
occasionally and for short periods of time to a citizen resident in Belgium by 
a citizen established in a different Member State contingent upon the citizen 
resident in Belgium carrying in the vehicle the private attestation of 
permission to use the vehicle, that is, an attestation within the meaning of 
Article 3(2), point 6, of the Royal Decree of 20 July 2001 on the registration 
of vehicles, conflict with the relevant provisions of EU law, in particular 
Articles 20 and 21 of the Treaty on the Functioning of the European Union 
on freedom of movement and the free movement of capital, on the one hand, 
and/or Articles 63 and 64 of the Treaty on the Functioning of the European 
Union on the free movement of capital, on the other, as two of the four 
fundamental freedoms of the European Union? 
2. Is national legislation, as described above and applied by the Walloon 
Region, justified by requirements of public security or other protective 
measures and is compliance with the national legislation, interpreted as 
meaning that a document issued by the foreign owner of the vehicle granting 
permission to use the vehicle for a limited and specified period of time must 
be carried in the vehicle, with no possibility of providing such a document 
subsequently, necessary in order to attain the objective pursued or could the 
objective have been attained by other, less strict and formalistic means? 
[…] [Procedural matters, signatures] […]