WRITTEN QUESTION E-0183/98 by Jonas Sjöstedt (GUE/NGL) to the Commission (5 February 1998)

Subject: Actions of the Finnish customs

Several times last year the Finnish customs authorities seized vehicles belonging to Swedish citizens, claiming that the individuals involved should be taxed in Finland as they spent more than 185 days there per year. In support of this they quoted EU Directive 83/182/EEC ((OJ L 105, 23.4.1983, p. 59. )). The persons involved were Swedish residents and taxpayers. For example, there was a young Swedish man visiting his Finnish girlfriend, and an elderly couple using their summerhouse in Finland. Are the Finnish customs authorities acting correctly? Are they correctly interpreting the Directive?

Answer given by Mr Monti on behalf of the Commission (7 April 1998)

Council Directive 83/182/EEC of 28 March 1983 on tax exemptions within the Community for certain means of transport temporarily imported into one Member State from another ((OJ L 105, 23.4.1983. )) is designed to eliminate obstacles to the free movement of persons and to the establishment of a European internal market ((See the Directive's recitals and, among other things, the judgment of the Court in Case C-389/95 Siegfried Klattner v Greek State [1997] ECR I-2719. )) that result from the different tax regimes in the Member States applicable to the temporary importation of means of transport.

Pursuant to Article 3 of the Directive, when a means of transport (particularly a tourist vehicle) is temporarily imported, exemption from vehicle registration and normal road taxes is granted for a period, continuous or otherwise, of not more than six months in any twelve months, provided that the individual importing such goods has his normal residence in a Member State other than the Member State of temporary importation and that he employs the means of transport in question for his private use.

As regards the concept of normal residence, Article 7 of the Directive stipulates that it is the place where a person usually lives, that is for at least 185 days in each calendar year, because of personal and occupational ties or, in the case of a person with no occupational ties, because of personal ties which show close links between that person and the place where he is living.

This concept, which is fundamental to the operation of the Directive and which, as a Community concept, cannot be altered by the Member States ((Judgment of the Court in Case C-9/92 Commission of the European Communities v Hellenic Republic [1993] ECR I-4467. )), has raised several problems involving its interpretation on which the Court of Justice has had occasion to rule. In a case whose factual circumstances are similar to the first example given by the Honourable Member ((Judgment of the Court in Case C-297/89 Rigsadvokaten v Nicolai Christian Ryborg [1991] ECR I-1943. )), the Court ruled that normal residence must be considered to be the place where the person concerned has his permanent centre of interests and that the mere fact that he regularly travels to another Member State is not sufficient reason to conclude that he has moved his permanent centre of interests to that country.

In any event, the Directive does not indicate what sanctions are to be applied if its rules are infringed (such as the ban on lending the vehicle to a resident of the Member State of temporary importation, or a vehicle which remains in that Member State longer than the period for which exemption is authorised).

The case-law of the Court has laid down certain principles for interpreting the Directive, in the light of its objective as outlined above and taking account of such aspects as the absence of any indication of tax evasion, abuse or tax avoidance on the part of the person concerned, in order to determine whether or not the rules have been infringed ((For example, judgment of the Court in Case 127/86 Ministère public and ministre des Finances du royaume de Belgique v Yves Ledoux [1988] ECR 3741. )). Furthermore, in similar cases the Court has ruled that, in the absence of harmonisation of Community legislation in the field of offences committed in respect of certain Community provisions, the Member States are competent to adopt such penalties as appear to them to be appropriate. When making use of that competence, they are, however, required to comply with Community law and its general principles and hence with the principle of proportionality. In that respect, the administrative measures or penalties must not go beyond what is strictly necessary for the objectives pursued, and the control procedures must not be accompanied by a penalty which is so disproportionate to the gravity of the infringement that it becomes an obstacle to the freedoms enshrined in the EC Treaty ((For example, judgment of the Court in Case C-210/91 Commission of the European Communities v Hellenic Republic [1992] ECR I-6735. )).

It is on the basis of these principles that the measures taken by the Finnish authorities, the precise circumstances of which are not known to the Commission, must be assessed. The Commission is willing to contact the Finnish authorities in the light of any additional information that the Honourable Member might provide.