OPINION OF ADVOCATE GENERAL

Sharpston

delivered on 13 July 2006 ( )

Case C-333/05

Ilona Németh

v

Vám- és Pénzügyőrség Dél-Alföldi Regionális Parancsnoksága





1. In this reference for a preliminary ruling, the Bács-Kiskun Megyei Bíróság (Bács-Kiskun County Court), Hungary, wishes to know whether a national registration duty on motor vehicles is incompatible with (a) Articles 23 and 25 EC, prohibiting customs duties on imports or charges having equivalent effect between Member States; (b) Article 90 EC, prohibiting internal taxation which discriminates against products from other Member States; or (c) Article 33(1) of the Sixth VAT Directive, ( ) under which Member States may maintain or introduce any taxes, duties or charges which cannot be characterised as turnover taxes, provided that they do not give rise to formalities connected with the crossing of intra-Community frontiers. The duty in question is imposed on each vehicle when it is first placed on the road in the Member State, and its amount is determined by the vehicle’s technical characteristics and environmental classification, regardless of value.

2. Questions concerning the same registration duty have also been referred to the Court in Case C-290/05 Nádasdi, in which I also deliver my Opinion today. However, the questions in that case are specifically confined to the effect of the duty on second-hand vehicles and to compatibility with Article 90 EC.





Relevant Community law

Treaty provisions and legislation

3. Article 23 EC ( ) provides:

‘1. The Community shall be based upon a customs union which shall cover all trade in goods and which shall involve the prohibition between Member States of customs duties on imports and exports and of all charges having equivalent effect ...

2. The provisions of Article 25 … shall apply to products originating in Member States and to products coming from third countries which are in free circulation in Member States.’

4. Article 25 EC provides:

‘Customs duties on imports and exports and charges having equivalent effect shall be prohibited between Member States. This prohibition shall also apply to customs duties of a fiscal nature.’

5. Article 90 EC provides:

‘No Member State shall impose, directly or indirectly, on the products of other Member States any internal taxation of any kind in excess of that imposed directly or indirectly on similar domestic products.

Furthermore, no Member State shall impose on the products of other Member States any internal taxation of such a nature as to afford indirect protection to other products.’

6. Article 33(1) of the Sixth Directive provides:

‘Without prejudice to other Community provisions, in particular those laid down in the Community provisions in force relating to the general arrangements for the holding, movement and monitoring of products subject to excise duty, this Directive shall not prevent a Member State from maintaining or introducing taxes on insurance contracts, taxes on betting and gambling, excise duties, stamp duties and, more generally, any taxes, duties or charges which cannot be characterised as turnover taxes, provided however that those taxes, duties or charges do not, in trade between Member States, give rise to formalities connected with the crossing of frontiers.’





Case-law

7. Those provisions have been examined by the Court on a number of occasions with specific reference to national taxes imposed on motor vehicles imported from other Member States.

8. First of all, the Court has consistently held that the provisions of Article 25 EC, relating to charges having equivalent effect, and those of Article 90 EC, relating to discriminatory internal taxation, cannot be applied together, with the result that the same charge cannot belong to both categories at the same time. ( )

9. In that regard, a fiscal charge on the registration of motor vehicles, which is levied not by reason of a vehicle crossing the frontier of a Member State but upon first registration of the vehicle in the territory of that State, must be regarded as part of a general system of internal dues on goods and thus examined in the light of Article 90 EC. ( )

10. As regards the taxation of second-hand vehicles in the light of Article 90 EC, I have summarised the most relevant decisions of the Court ( ) in points 4 to 22 of my Opinion in Nádasdi, to which I refer.

11. It may be distilled from that case-law that, in order to be compatible with the first paragraph of Article 90 EC, a national tax levied once only on each vehicle, on its first registration in a Member State, must, in so far as it affects second-hand vehicles, be calculated in such a way as to avoid any discrimination against such vehicles from other Member States. Such a tax must therefore not impose on imported second-hand vehicles a burden which exceeds the burden of residual tax included in the cost of an equivalent vehicle first registered in the same Member State at an earlier stage in its existence.

12. In those judgments, the Court also specified, inter alia, that the detailed rules for levying the tax must be taken into account in assessing compatibility with Article 90 EC; that the pursuit of an environmental objective does not absolve a Member State from the need to avoid discrimination; that depreciation in value need not be assessed individually in every case but may be based on scales or tables using relevant criteria to provide a good approximation of depreciated value; and that it must be possible for an owner to challenge the application of such scales or tables in cases where they do not take account of the true characteristics of an individual vehicle.

13. The taxation of new vehicles falls within the first paragraph of Article 90 EC only where there is domestic production. If such taxation does not discriminate overtly against vehicles imported from other Member States, which would clearly be contrary to that provision, the question may none the less arise whether it is structured so as to have an indirectly discriminatory or protective effect. In that regard, the Court has held that a system of taxation cannot be regarded as discriminatory solely because only imported products, in particular those from other Member States, come within the most heavily taxed category, provided that the rate differential does not have the effect of favouring the sale of vehicles of domestic manufacture over the sale of vehicles imported from other Member States. ( )

14. The second paragraph of Article 90 EC prohibits internal taxation of such a nature as to afford ‘indirect fiscal protection affecting imported products which, although not similar, within the meaning of the first paragraph of Article [90 EC], to domestic products, are nevertheless in a competitive relationship with some of them, even if only partially, indirectly or potentially’. ( ) There appear to be no cases in which it has been held, or indeed alleged, that taxation of imported motor vehicles affords indirect protection to products other than motor vehicles.

15. Finally, the Court has consistently held that categorisation of a charge as a turnover tax for the purposes of Article 33(1) of the Sixth VAT Directive depends on whether it has the essential characteristics of VAT within the meaning of that directive. Among those essential characteristics are the following: such a tax applies generally to transactions relating to goods or services; it is proportional to the price charged by the taxable person in return for the goods and services which he has supplied; it is charged at each stage of the production and distribution process, including that of retail sale, irrespective of the number of transactions which have previously taken place; and the amounts paid during the preceding stages of the process are deducted from the tax payable by a taxable person, with the result that the tax applies, at any given stage, only to the value added at that stage and the final burden of the tax rests ultimately on the consumer. ( )

16. In Tulliasiamies, ( ) the Court found that a Finnish ‘value added tax on car tax’ – in which the amount payable was a percentage of ‘car tax’, itself calculated on the basis of the vehicle’s taxable value – did not have the essential features of VAT. First, it was not a general tax since it was not intended to catch all economic transactions in the Member State but concerned only a limited class of goods, namely certain vehicles. Second, the amount of the tax was not proportional to the price of the goods but depended only indirectly on the price of a vehicle. Third, it did not have to be paid at each stage in the production and distribution process, but only on the charging of car tax, and its effect was not to tax the added value at a particular stage of production and distribution, but the total value.





Relevant national law

17. One precondition for registering a passenger car or motor caravan ( ) for use on the road in Hungary is that registration duty (regisztrációs adó) must have been paid.

18. Prior to 1 February 2004, consumption duty (fogyasztási adó) was levied on such vehicles. It was a one-off sum, calculated as a proportion of the declared value, that proportion being determined according to certain consumption characteristics of the vehicle.

19. From that date, consumption duty was replaced by registration duty, by Law No CX of 2003 (Law on Registration Duty). Registration duty is levied as a fixed amount for each class of vehicle. Vehicles are classified essentially by engine type ( ) and capacity, and by environmental protection rating. ( ) There are also classes for ‘museum-type’ vehicles and ‘other’ vehicles. The amount of duty is unrelated to the value of the vehicle. It applies without distinction to imported vehicles (whether new or second-hand) and to vehicles manufactured in Hungary.

20. Other taxes (including an annual tax) are also levied on motor vehicles, but they are not in issue in the present case. Unlike some of those taxes, however, registration duty is not normally refunded if a vehicle is taken off the road again.





The main proceedings and the order for reference

21. On 28 December 2004, Ms Németh, the applicant in the main proceedings, began the procedure for payment of registration duty on a Ford Mondeo motor car purchased in Germany, ( ) with a 1998 cc diesel engine and an environmental protection rating of 7. On that basis, the tax authority determined the amount of registration duty at HUF 390 000 (about EUR 1 550).

22. Ms Németh objected to that decision on the ground that the imposition of the tax infringed Community law. She maintained that the registration duty was basically a customs duty on imports and as such prohibited within the Community by Articles 23 and 25 EC. Alternatively, she argued that it could be regarded as internal taxation of a kind prohibited by Article 90 EC, or as a turnover tax prohibited by Article 33 of the Sixth VAT Directive.

23. The tax authority maintained its decision, on the ground that it was responsible for applying national law as enacted and not for deciding whether national law infringed Community law.

24. Ms Németh now seeks judicial review of that decision. She maintains her position that the provisions of the Law on registration duty are contrary to Community law, which the tax authority is required to apply. The tax authority contends that the provisions laid down by the legislature are binding and leave it no discretion.

25. In the light of those arguments, the national court, which explains that it acts at first and last instance in proceedings of the kind before it, has decided to seek a preliminary ruling on the following questions:

‘(1) May a tax imposed by a Member State, such as the Hungarian registration tax, be considered to be a customs duty or a measure having equivalent effect?

(2) If Question 1 is answered in the negative, may a tax imposed by a Member State, such as the Hungarian registration tax – which requires payment of a tax as a precondition for the registration and use on the road of a passenger car – be considered to be an import tax of any kind?

(3) If Question 2 is answered in the negative, is a tax imposed by a Member State, such as the Hungarian registration tax, compatible with the requirements of Article 90 EC or of Article 33 of Directive 77/388/EEC, or does the Hungarian registration tax infringe the common system of value added tax?

(4) As Community law now stands, is a tax imposed by a Member State, such as the Hungarian registration tax, compatible with the provisions of Community law when the amount of the registration tax payable on new and second-hand passenger cars – leaving aside the environmental protection rating of the vehicles – is identical, does not in any way reflect the depreciation in value of second-hand vehicles and is wholly independent of the date on which the vehicle was placed in circulation and of the time during which it remained in (lawful) circulation?’

26. No application was received setting out reasons for which a party wished to be heard. Pursuant to Article 44a of the Court’s Rules of Procedure, no hearing was held.





Assessment

The questions referred

27. The Hungarian Government expresses some doubt as to the admissibility of the questions referred. The referring court has not in its view sufficiently indicated its grounds for deciding to seek a preliminary ruling, in particular with regard to questions 3 (compatibility with Article 90 EC and Article 33 of the Sixth VAT Directive) and 4 (compatibility with Community law in general of a tax which does not take depreciation into account).

28. It cites case-law to the effect that a national court must give at least some explanation as to the choice of the Community provisions of which it requests an interpretation and as to the link between those provisions and the national legislation applicable to the dispute before it. Without such information, the Court lacks the factual and legal material necessary to give a useful answer to the questions. The information provided must also be such as to enable the governments of the Member States and other interested parties to submit observations. ( )

29. Whilst I understand the Hungarian Government’s doubts, I do not feel that they are sufficient to justify declining to answer the questions referred. Not only the Hungarian Government itself but also the Polish Government and the Commission have found it possible to submit observations on all four questions, even if they have to some extent interpreted and reformulated those questions. I consider that the Court may take a similar approach.

30. Questions 1 and 2 concern compatibility with Articles 23 and 25 EC and the taxation of imports. I propose to examine them together.

31. Question 3 concerns compatibility, on the one hand, with Article 90 EC and, on the other hand, with Article 33 of the Sixth VAT Directive. I propose to examine those two aspects separately.

32. Finally, question 4 concerns compatibility with ‘Community law as it now stands’. It does not specify any aspect of Community law with regard to which compatibility is to be assessed and in my view must therefore be confined to the provisions mentioned in the order for reference, which are those that form the basis for the first three questions. However, it concerns the specific issue of failure to reflect the depreciation in value of second-hand vehicles. That issue is in fact relevant only to the question of discriminatory internal taxation and thus of compatibility with Article 90 EC. It therefore belongs with the first part of question 3.





Taxation of imports (questions 1 and 2)

33. Ms Németh in her observations considers in particular ( ) that the registration duty is in fact a fiscal charge having an effect equivalent to that of a customs duty. Her essential arguments in that regard may be summarised as follows.

34. Registration duty is not a tax on the use of a vehicle. A separate tax ( ) fulfils that function and, being a tax on use, is reimbursed when a vehicle is taken off the road, even temporarily. Registration duty on the other hand is – like customs duty, with which it is thus comparable – reimbursed if the vehicle is re-exported. It is moreover artificial to say that the operative event for the charging of registration duty is the placing of a vehicle on the road rather than its importation, since with very few exceptions of marginal importance the only purpose of importing a vehicle is to use it on the road. In terms of continuity of State revenue, consumption duty was first introduced to make up for loss of customs duty, ( ) then was itself replaced by registration duty. Registration of a vehicle in Hungary involves other procedures and other fees, so registration duty is not in fact linked to the requirements of registration. The amount charged is linked only loosely and indirectly to the actual degree of environmental damage caused by a vehicle: it is just as closely linked, through engine capacity, to value and may thus be seen as an ad valorem duty, like customs duty. Since the introduction of registration duty, imports of second-hand vehicles into Hungary have dropped, according to Ms Németh’s figures, by 74.3%, thus demonstrating that the duty functions as a restriction on trade, having the same effect as a customs duty.

35. By contrast, the Hungarian and Polish Governments and the Commission are all of the view that the Hungarian registration duty is not a customs duty on imports or a charge having equivalent effect, prohibited by Articles 23 and 25 EC, or indeed any form of taxation of imports as such. I agree with them, and I find nothing in Ms Németh’s submissions to affect that view.

36. First and foremost, it is clear from De Danske Bilimportører and Weigel ( ) that a fiscal charge on the registration of motor vehicles is in principle levied not by reason of the vehicle crossing the frontier of the Member State which imposes it, but upon registration of the vehicle in the territory of that State. Such a charge must be regarded as part of a general system of internal dues on goods. It must thus be examined in the light of Article 90 EC.

37. It appears moreover that registration duty is imposed not only on vehicles imported into Hungary but also, at the same rates based on the same criteria, on those manufactured there. ( ) Such a circumstance makes it clear that the operative event is quite distinct from importation or the crossing of a frontier.

38. Ms Németh is no doubt correct in saying that registration duty is in fact charged on practically all imported vehicles very shortly after their importation. It nevertheless remains true that, as she herself accepts, some vehicles will escape the duty. Some will be intended only for use off the public highway, some only for display in a museum or collection, some perhaps only as a source of spare parts. None of those categories will need to be registered for use on the road; and thus none will attract registration duty following their importation.

39. The other features of registration duty to which Ms Németh draws attention, and which she claims demonstrate its affinity with customs duty, do not affect my view.

40. First, the fact that registration duty may be refunded in circumstances comparable to those in which customs duty may also be refunded ( ) in no way establishes that the two are levied in respect of the same event. In any event, Ms Németh acknowledges that registration duty may also be refunded in the event of theft or destruction of the vehicle – circumstances which are unlikely to give rise to a refund of customs duty in any system.

41. Second, the fact that registration duty may have been introduced at least in part to make up for a shortfall in revenue from customs duty, abolished in trade with Member States of the Community, is irrelevant. The primary purpose of all taxation is to raise revenue. The nature of one tax does not determine the nature of another tax introduced to replace it for that purpose.

42. Third, even if the amount of registration duty is related to some extent to the value of the vehicle, and even if that were to make it an ad valorem duty like customs duty, the fact remains that many other levies – excise duty and VAT, for example – are also ad valorem taxes or have a strong ad valorem element and yet form part of a purely internal system of taxation.

43. Finally, even if the introduction of registration duty has led to a drop in imports of second-hand vehicles into Hungary, thus having a restrictive effect on trade, that is not in itself relevant to an assessment under Articles 23 and 25 EC. Those articles prohibit not any measure which restricts trade but ‘any pecuniary charge, whatever its designation and mode of application, which is imposed unilaterally on goods by reason of the fact that they cross a frontier’. ( ) It is Article 28 EC which prohibits ‘quantitative restrictions on imports and all measures having equivalent effect’. However, quite apart from the fact that the Court has not been asked to assess the Hungarian registration tax in the light of Article 28 EC, it is settled case-law that the scope of that article ‘does not extend to the obstacles to trade covered by other specific provisions of the Treaty and obstacles of a fiscal nature or having an effect equivalent to customs duties, which are covered by Articles 23 EC, 25 EC and 90 EC, do not fall within the prohibition laid down in Article 28 EC’. ( )

44. Consequently, since the Hungarian registration duty is clearly a fiscal charge and is not levied by reason of the fact that the vehicles to which it applies cross a frontier, it must be assessed in the light of Article 90 EC.





Discriminatory internal taxation (question 3, first part, and question 4)

45. In my Opinion in Nádasdi, I analysed the characteristics of a tax such as the Hungarian registration duty, in so far as it affects second-hand vehicles, in the light of the first paragraph of Article 90 EC. I came to the following conclusions:

‘(1) In order to determine whether a tax imposed on motor vehicles when they are first placed on the road in a Member State is compatible with the first paragraph of Article 90 EC in so far as it applies to second-hand vehicles, the effect of that tax on the cost of such vehicles newly imported from another Member State must be compared with the effect of the residual amount of tax on the cost of similar second-hand vehicles which have already been placed on the road in the first Member State and which have already borne that same tax at an earlier stage. A comparison with second-hand vehicles already placed on the road in the Member State before the introduction of that tax is not relevant.

(2) A tax imposed on second-hand motor vehicles when they are first placed on the road in a Member State, the amount of which is calculated without taking the vehicle’s actual depreciation into account, so that when applied to such vehicles imported from other Member States it exceeds the amount of residual tax incorporated in the value of similar second-hand vehicles already registered in the national territory, is, to the extent of that excess charge, incompatible with the first paragraph of Article 90 EC.

(3) That incompatibility is not affected by the fact that the tax in question is intended to pursue aims related to environmental protection or is levied solely on the basis of objective criteria relevant to such protection.’

46. For the reasoning by which I reached those conclusions, I refer to my Opinion in that case. I have found nothing in the submissions to the Court in the present case such as to affect the views I reached there.

47. However, since in its third question the referring court seeks guidance as to compatibility with Article 90 EC as a whole, and since only its fourth question relates explicitly to second-hand vehicles, it is necessary to complete that assessment with a brief examination of the position as regards the application of the duty to new vehicles and also as regards the second paragraph of Article 90 EC.

48. As far as new vehicles are concerned, it appears from the case-file that registration duty does not differ in any way in its application to vehicles manufactured in Hungary and to those manufactured elsewhere. Nor has it been suggested that it has the effect of favouring the sale of vehicles of domestic manufacture over the sale of vehicles imported from other Member States. ( ) Consequently, there is no internal taxation on the latter in excess of that imposed on similar domestic products; and the duty appears, in so far as it applies to new vehicles, to be compatible with the first paragraph of Article 90 EC.

49. The second paragraph of Article 90 EC prohibits internal taxation of such a nature as to afford indirect protection to domestic products which, although not similar to imported products for the purposes of the first paragraph, are nevertheless in a competitive relationship with them.

50. In the present case, the imported products in issue are passenger cars and motor caravans, both new and second-hand, and similar domestic products exist in Hungary. It has not been suggested that there are other domestic products which are not similar but which ‘are nevertheless in a competitive relationship with some of [the imported products], even if only partially, indirectly or potentially’. ( ) Indeed, it is difficult to imagine what such products might be. Consequently, there is in my view no scope for an assessment under the second paragraph of Article 90 EC.





Article 33 of the Sixth Directive (question 3, second part)

51. It appears from the order for reference, and from the brief mention she makes of the provision in her observations, that Ms Németh considers that the Hungarian registration duty may infringe Article 33(1) of the Sixth Directive because it can be characterised as a turnover tax.

52. The wording of that provision is, however, not quite as simple as a straightforward prohibition of such taxes. It allows Member States to maintain or introduce taxes ‘which cannot be characterised as turnover taxes’, provided that they ‘do not, in trade between Member States, give rise to formalities connected with the crossing of frontiers’. The national court in its third question asks simply whether a tax such as the duty in issue is compatible with the provision. I shall therefore deal with both of those aspects, although no lengthy examination will be necessary.

53. First, it is quite clear that the Hungarian registration duty does not possess the four essential characteristics of VAT, possession of all of which the Court has consistently held to be necessary for a tax to be characterised as a turnover tax prohibited by the Sixth Directive. Those characteristics of VAT are that:

– it applies generally to transactions relating to goods or services;

– it is proportional to the price charged by the taxable person in return for the goods and services which he has supplied;

– it is charged at each stage of the production and distribution process, including that of retail sale, irrespective of the number of transactions which have previously taken place; and

– the amounts paid during the preceding stages of the process are deducted from the tax payable by a taxable person, with the result that the tax applies, at any given stage, only to the value added at that stage and the final burden of the tax rests ultimately on the consumer.

54. Registration duty, as it has been described, possesses none of those features. It applies only to a limited category of goods, namely passenger cars and motor caravans. It is not proportional to the price of those goods but is levied at rates fixed according to technical characteristics, which may be shared by highly priced new vehicles and greatly depreciated second-hand vehicles. It is charged only at a single stage in the existence of a vehicle, that of its first placing on the road in Hungary. Finally, there is no provision for deduction of any comparable tax paid at any earlier stage.

55. Second, as I have made clear above, the levying of registration duty does not give rise to any formalities connected with the crossing of a frontier. The operative event is the first placing on the road in Hungary. Vehicles may be imported for purposes other than use on the public highway without being subject to the duty. And the duty also applies to vehicles manufactured in Hungary, which do not cross any frontier.





Conclusion

56. In the light of all the above considerations, I am of the view that the Court should give the following answers to the questions referred for a preliminary ruling by the Bács-Kiskun Megyei Bíróság:

Questions 1 and 2

– A tax imposed on motor vehicles when they are first placed on the road in a Member State, regardless of their place of manufacture and to the exclusion of imported vehicles which are not intended for use on the road, is not a customs duty on imports or a charge having equivalent effect for the purposes of Articles 23 and 25 EC, nor does it give rise to formalities connected with the crossing of a frontier for the purposes of Article 33(1) of Sixth Council Directive 77/388/EEC.

Question 3 (first part) and question 4

– Where such a tax applies without distinction to new vehicles manufactured in the Member State which imposes it and to new vehicles manufactured in other Member States, and provided that it does not have the effect of favouring the sale of the former over that of the latter, it is to that extent compatible with the first paragraph of Article 90 EC.

– A tax imposed on second-hand motor vehicles when they are first placed on the road in a Member State, the amount of which is calculated without taking the vehicle’s actual depreciation into account, so that when applied to such vehicles imported from other Member States it exceeds the amount of residual tax incorporated in the value of similar second-hand vehicles already registered in the national territory, is, to the extent of that excess charge, incompatible with the first paragraph of Article 90 EC.

– In the absence of any other domestic products which are not similar to new or second-hand motor vehicles but which are nevertheless in a competitive relationship with them, even if only partially, indirectly or potentially, there is no scope for an assessment of such a tax under the second paragraph of Article 90 EC.

Question 3 (second part)

– A tax which applies only to passenger cars and motor caravans, which is levied at rates fixed according to their technical characteristics, which is charged only when a vehicle is first placed on the road in a Member State, and which makes no provision for deduction of any comparable tax paid at any earlier stage, cannot be characterised as a turnover tax within the meaning of Article 33(1) of Sixth Council Directive 77/388.