Opinion of the Advocate General — ECLI:EU:C:1997:328
Date: 1997-06-26
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Taxation;Internal taxation
Procedure: Action for failure to fulfil obligations - successful
Origin: Greece

summary form, the legal andfactual particulars on which those complaints are based (see, inter alia, CaseC-52/90 Commission v Denmark [1992] ECR I-2187, paragraph 17). An applicationdoes not satisfy that requirement if the Commission's complaints are not accuratelyset out in it and simply appear by way of reference to the reasons set out in theletter of formal notice and in the reasoned opinion (Case C-43/90 Commission vGermany [1992] ECR I-1909, paragraphs 7 and 8). It follows that, in so far as it relates to the flat-rate special added duty as it wasstructured before 1994, the application is inadmissible. According to settled case-law, an application under Article 169 of the Treaty iscircumscribed by the pre-litigation procedure provided for by that article and,consequently, the Commission's reasoned opinion and the application must bebased on identical grounds of complaint (see, in particular, case 298/86 Commissionv Belgium [1988] ECR 4343, paragraph 10). The Court did, however, make it clear that that requirement could not go so far asto make it necessary that, irrespective of the circumstances, the national provisionsmentioned in the reasoned opinion and in the application should be completelyidentical. Where a change in the legislation occurred between those two phases ofthe procedure, it is sufficient that the system established by the legislation contestedin the pre-litigation procedure has as a whole been maintained by the newmeasures which were adopted by the Member State after the issue of the reasonedopinion and have been challenged in the application (Case C-105/91 Commissionv Greece [1992] ECR I-5871, paragraph 13). That is exactly the case, for the reasons given by the Advocate General in section10 of his Opinion, with respect to the Greek legislation on the flat-rate addedspecial duty after the amendments introduced in 1994. Accordingly, theCommission's second ground of complaint, in so far as it relates to the new versionof that duty, must be declared admissible. As to the substance, it is sufficient to point out that since Law No 2187/1994 wasadopted the detailed rules for determining the taxable value of imported used carsfor the purposes of levying the flat-rate added special duty have been similar tothose in force for the special consumer tax. Thus they also give rise todiscriminatory taxation of those vehicles, for the reasons set out in paragraphs 14to 29 of this judgment. In the circumstances, the Commission's second ground of complaint must be upheldin so far as it relates to the detailed rules for calculating the flat-rate special addedduty on imported used cars as it has been structured since 1994. The third ground of complaint Under its third ground of complaint, the Commission charges the Hellenic Republicwith excluding, in all events, imported used cars from the benefit of the reducedrates of special consumer tax applicable to anti-pollution technology cars. It is not disputed that a Member State cannot, without offending against theprohibition on discrimination laid down in Article 95 of the Treaty, confer taxadvantages on less polluting cars while refusing those advantages to cars from theother Member States which nevertheless satisfy the same criteria as the domesticcars which do benefit from them. The Greek Government has, however, invoked a statement entered in the minutesof a meeting of the Council of Ministers of the Environment of 20 and 21December 1990, in which, it claims, the Commission recognized the particularpollution problems besetting the Hellenic Republic and accepted the fiscalmeasures at issue, which are designed to encourage the purchase of new, lesspolluting, vehicles. It should be pointed out that such a statement cannot affect the meaning of aprovision of the Treaty and that the Commission cannot give a Member Stateassurances as to the compatibility of domestic tax legislation with the Treaty. Furthermore, in the statement in question the Commission made its approval of thenational provisions in question expressly subject to the condition that they shouldcomply with the rules of the Treaty, in particular the prohibition of alldiscrimination between domestic and imported vehicles. The Greek Government has also claimed that applying the reduced rates of specialconsumer tax to imported used cars would require it to carry out a technical teston each of those cars individually when they were imported and that, at themoment, the introduction of such testing would run up against serious practicaldifficulties. However, even assuming the existence of those difficulties to be established, it mustbe pointed out that they cannot justify the application of internal taxation whichdiscriminates against products from other Member States in breach of Article 95of the Treaty (see, to that effect, Case C-327/90 Commission v Greece, cited above,paragraph 24, and Nunes Tadeu, cited above, paragraph 19). In those circumstances the Commission's third ground of complaint must be upheld. It follows from all the foregoing considerations that, by determining, for theapplication of the special consumer tax and the flat-rate added special duty, thetaxable value of imported used cars by reducing the price of equivalent new carsby 5% for each year of age of the vehicles concerned, with, as a rule, a maximumreduction of 20%, and by excluding anti-pollution technology imported used carsfrom the benefit of the reduced rates of the special consumer tax applicable to thattype of vehicle, the Hellenic Republic has failed to fulfil its obligations underArticle 95 of the Treaty. Costs Under Article 69(3) of the Rules of Procedure, the Court may order that the costsbe shared or that the parties bear their own costs if each party succeeds on someand fails on other heads. Since the Hellenic Republic has been unsuccessful in allessential respects, it must be ordered to pay the costs. On those grounds, THE COURT (Fifth Chamber) hereby: Declares that, by determining, for the application of the special consumertax and the flat-rate added special duty, the taxable value of imported usedcars by reducing the price of equivalent new cars by 5% for each year of ageof the vehicles concerned, with, as a rule, a maximum reduction of 20%,and by excluding anti-pollution technology imported used cars from thebenefit of the reduced rates of the special consumer tax applicable to thattype of vehicle, the Hellenic Republic has failed to fulfil its obligationsunder Article 95 of the Treaty; For the rest, dismisses the application; Orders the Hellenic Republic to pay the costs. GulmannWathelet Moitinho de Almeida Edward Puissochet Delivered in open court in Luxembourg on 23 October 1997. R. Grass C. Gulmann Registrar President of the Fifth Chamber 1: Language of the case: Greek.