Case C-469/02: Action brought on 23 December 2002 by the Commission of the European Communities against the Kingdom of Belgium
Date: 2003-02-22
Institutions: Court of Justice
Subjects: Belgium, European Commission, action for failure to fulfil an obligation, free movement of workers, professional career, residence, social legislation, social-security benefit

C 44/16

EN

Official Journal of the European Union

22.2.2003

in Denmark, subject

the work for the undertaking or at

Under the ‘amended scheme’ (see the Notice of the Ministry of
Transport of June 1999 on the registration and MOT-testing
of vehicles), Danish workers resident in Denmark may use
within Denmark a foreign registered vehicle without having to
to compliance with the
register it
condition that
the
established place of operation outside Denmark constitutes the
main activity of the person concerned. The full registration
duty need not therefore be paid inasmuch as registration is not
required. On the other hand, the Law on registration duty does
require payment of a charge which is defined as a part payment
calculated on the basis of the full registration duty or —
following authorisation and subject to the further condition
that the car is used solely for commercial purposes — as a
periodic payment of a fixed amount.

Both the ‘previous scheme’ and the ‘amended scheme’ create
barriers to the free movement of workers contrary to the
combined provisions of Articles 39 EC and 10 EC.
It is
contrary to Article 39 EC to introduce or retain national
provisions which give rise to obstacles to the free movement
of workers, irrespective of whether the national provisions
apply indiscriminately, if the provisions affect workers’ access
to the labour market. The Danish rules are precisely of such a
character. A worker resident outside Denmark will, as a matter
of course, be able to use a foreign company car within
Denmark without having to obtain authorisation or to pay
duty. There is thus clear discrimination of a person resident in
Denmark vis-à-vis a person resident outside Denmark in
respect of precisely the same use in Denmark of a foreign
registered company car. In conclusion, a worker who does not
perform his ‘main activity’ within the foreign undertaking —
which might precisely point to an extremely limited use of the
company car — is prohibited from using that company car
within Denmark.
It seems obvious that an employer will
thereby be dissuaded from employing a person resident in
Denmark in preference to a worker resident outside Denmark
as the above obstacles exist even for purely commercial use of
the vehicle. It is in this context of secondary importance
whether the Danish rules can be regarded as constituting a
barrier to a worker’s right to seek employment outside of
Denmark or a barrier to an employer’s prospects of recruiting
workers resident in Denmark. There will be a barrier irrespec-
tive of whether it is the employer or the employee who must
pay the costs and obtain authorisation or effect registration.

seeking employment and obstacles that prevent an employer
from offering such use will have the result of discouraging
Danish residents — in contrast to persons resident outside
Denmark — from seeking employment in a foreign undertak-
ing offering such ancillary private use of a company car.

The Danish Government has set out four principal grounds of
justification: the interest
in maintaining supervision (road
safety and the monitoring and control of road users), the
interest in preventing the erosion of tax revenue in Denmark,
the fact that certain barriers resulting from differences in
taxation levels must be accepted, and the interest in achieving
equivalent conditions of competition as between Danish and
non-Danish undertakings. None of these considerations can
justify the Danish rules, whether by reference to the dero-
gations from Article 39 EC authorised by the Treaty or to the
case-law which states that national measures liable to restrict
the exercise of the fundamental freedoms guaranteed by the
Treaty or to make the exercise of those freedoms less attractive
may be accepted under certain conditions.

Finally, the Commission disputes the contention that Council
Directive 83/182/EEC (2) can be construed as meaning that the
Danish rules may be treated as lawful, quite apart from the fact
that provisions of secondary Community law cannot exempt
a Member State from its obligations under the combined
provisions of Articles 39 EC and 10 EC.

(1) Case C-297/99 Skills Motor Coaches and Others [2001] ECR I-

573.

(2) Council Directive 83/182/EEC of 28 March 1983 on tax exemp-
tions within the Community for certain means of transport
temporarily imported into one Member State from another (OJ
L 105 of 23.4.1983, p. 59).

Action brought on 23 December 2002 by the Commission
of the European Communities against the Kingdom of
Belgium

(Case C-469/02)

(2003/C 44/30)

With specific reference to ancillary private use, it should be
noted at the outset that transport from one’s place of residence
to one’s place of work cannot be treated as constituting ‘private
use’; this follows from the judgment in Case C-297/99 Skills
Motor Coaches Ltd (1). The possibility of ancillary private use
of a company car is an obvious incentive when it comes to

An action against the Kingdom of Belgium was brought
before the Court of Justice of the European Communities on
23 December 2002 by the Commission of the European
Communities, represented by H. Michard, acting as Agent,
with an address for service in Luxembourg.

22.2.2003

EN

Official Journal of the European Union

C 44/17

The applicant claims that the Court should:

— Declare that by making the granting and payment of a
benefit under the career-break benefit scheme subject to
the condition that the person concerned is habitually
resident in Belgium, the Kingdom of Belgium has failed
to fulfil its duties under Article 39 of the EC Treaty,
Article 7 of Regulation (EEC) No 1612/68 of the Council
of 15 October 1968 on freedom of movement
for
workers within the Community (1), and specifically, so far
as concerns career breaks in the context of parental leave,
Article 73 of Council Regulation No 1408/71 of 14 June
1971 on the application of social security schemes to
employed persons and their families moving within the
Community (2);

— Order the Kingdom of Belgium to pay the costs.

Pleas in law and main arguments

(The residence clause) The Belgian authorities announced the
removal of the clause relating to residence acknowledging
thereby that the Commission’s arguments were well founded.
However, work on compliance has not been completed.

(The clauses relating to payment in Belgium) The requirement
that the persons affected by the benefit should have a bank
in certain cases, such as to call in
account in Belgium is,
question the effects of the amendments to the legislation at
issue. Indeed, there are instances where, in order to open a
bank account or to maintain it, certain banks require a
certificate of residence.

(Procedure for dealing with previous refusals) It is essential, for
the purpose of legal certainty, that the real rights of the
individual are protected from the harmful consequences of
conduct by the public authorities which is based on rules
which are incompatible with Community law. Failure of a
Member State to fulfil its obligations should not, in any event,
result in a financial advantage for itself. However, although the
Belgian authorities state that anyone whose career-break
benefit was refused on the basis of the former rules may make
a fresh application on the basis of the new rules, the cases
concerned will be routinely re-examined; neither is there any
information as to the dissemination of information or on the
procedures which will be put in place for back-payment of the
benefits to persons who have been denied them on the ground
that they were not resident in Belgium.

( 1) OJ, English Special Edition 1968 (II), p 475.
( 2) OJ, English Special Edition 1972 (I), p 159.

Reference for a preliminary ruling by the Cour d’appel de
Bruxelles by judgment of that Court of 20 December
2002 in the case of Siomab against Institut Bruxellois
pour la Gestion de l’Environnement (‘IBGE’)

(Case C-472/02)

(2003/C 44/31)

Justice of the
Reference has been made to the Court of
European Communities by judgment of the Cour d’appel de
Bruxelles (Court of Appeal, Brussels) of 20 December 2002,
received at the Court Registry on 27 December 2002, for a
preliminary ruling in the case of Siomab against Institut
Bruxellois pour la Gestion de l’Environnement (‘IBGE’) on the
following questions:

Where a Member State has recourse to the mechanism by
which the competent authority of dispatch gives notice of a
consignment note under Articles 3(8) and 6(8) of Council
Regulation No 259/93 of 1 February 1993 on the supervision
and control of shipments of waste within, into and out of the
European Community (1), must Articles 3(8), 4(3), 6(8), 7(4)
and 26 of the regulation be interpreted as meaning:

(a)

that the competent authority of dispatch within the
meaning of the regulation, which is empowered to verify
whether a planned shipment classified in the notification
as a ‘shipment of waste for recovery’ actually fits that
classification, may, when it considers that the classifi-
cation is incorrect,

(1)

refuse to transmit the consignment note because of
that incorrect classification and ask the notifier to
transmit a new consignment note to it,

(2)

transmit the consignment note after reclassifying
the planned shipment as a ‘shipment of waste for
disposal’,

(3)

transmit the consignment note containing the incor-
immediately accompanying its
rect classification,
transmission with an objection based on that incor-
rect classification?