Case C-138/04: Action brought on 15 March 2004 against the Kingdom of Denmark by the Commission of the European Communities
Date: 2004-06-26
Institutions: Court of Justice
Subjects: Denmark, European Commission, action for failure to fulfil an obligation, residence, tax exemption, tax on consumption, vehicle registration, vehicle tax

26.6.2004

EN

Official Journal of the European Union

C 168/1

I

(Information)

COURT OF JUSTICE

COURT OF JUSTICE

Action brought on 15 March 2004 against the Kingdom of
European
Denmark

the

by

of

the Commission
Communities

(Case C-138/04)

(2004/C 168/01)

An action was brought before the Court of Justice of the Euro-
pean Communities on 15 March 2004 by the Commission of
the European Communities, represented by R. Lyal and T. Fich,
acting as Agents, against the Kingdom of Denmark.

The Commission claims that the Court should:

1. Declare that, by not allowing persons transferring defini-
tively their normal residence to Denmark to benefit from
the exemption provided for in Article 1(1) of Directive
83/183/EEC with respect to the ‘registration fee’ which is, in
reality, a tax on consumption, the Kingdom of Denmark has
failed to fulfil
its obligations under Article 249 EC and
Directive 83/183/EEC (1).

2. Order the Kingdom of Denmark to pay the costs.

The registration fee is without doubt a ‘consumption tax’, since
it is charged on a consumer good, it is calculated on the basis
of the economic value of that good and it is charged only once.

Nor can there be any doubt that it is ‘normally charged on
personal property imported permanently … by private indivi-
duals’. The fact that it is not charged until the vehicle is regis-
tered does not change the fact that the registration is a prere-
quisite to being able to use the vehicle on the roads in
Denmark. The import of a vehicle by a person transferring his
residence can only have as its purpose the use of that vehicle
for its intended purpose.

— The Commission is also of the view that the registration fee
cannot be considered as being one of the ‘specific and/or
periodical duties and taxes connected with the use of such
property within the country’ which Article 1(2) of the direc-
tive excludes from the scope of the exemption.

That exclusion applies only to taxes relating to the actual use
of the property in question and taxes which may be charged to
ensure payment for services which are closely connected to the
use of that property.

Pleas in law and principal arguments:

The registration fee on motor vehicles is charged when the
vehicle is registered for the first time in Denmark, so that
persons importing their vehicles with a view to using them in
Denmark as part of their transferring their normal residence
from another country to Denmark are also subject to the tax.

Article 1(2) gives three examples of such taxes which fall
outside the exemption, namely ‘motor vehicle registration fees,
road taxes and television licences’. A common trait of those
examples is that they are not consumption taxes but rather
relate to the ongoing use of the property in question or ensure
that the public authorities do not bear the costs associated with
the use of that property.

— The Commission is of the view that the registration fee
thereby constitutes a ‘consumption tax normally charged
on personal property imported permanently from another
Member State by private individuals’, for which the Member
States are to grant an exemption pursuant to Article 1(1) of
the directive.

According to the Commission, the reference to motor vehicle
registration fees must, therefore, be interpreted as referring
only to the taxes relating to the actual registration of the
vehicle.

C 168/2

EN

Official Journal of the European Union

26.6.2004

This view is also supported by an examination of the different
language versions of Article 1 of the directive. Apart from the
German and Danish texts, which both use the same term in
Article 1(1) and (2), that is, ‘Abgaben’ and ‘afgifter’, respectively,
all of the other language versions use different terms in Article
1(1) and (2), namely ‘taxes’ et ‘droits’ in French, ‘taxes’ and ‘fees’
in English, etc. It is obvious that the terms ‘droits’ and ‘fees’ can
only refer to fees paid for a service.

It is not possible to consider the registration fee as payment for
a service, since it is calculated on the basis of the value of the
motor
value, up to
DKK 57 400 (corresponding to EUR 7 735) and 180 % of the
residual value of the motor vehicle at the time of registration,
including VAT.

currently 105 % of

vehicle,

the

(1) Council Directive 83/183/EEC of 28 March 1983 on tax exemptions
applicable to permanent
the
personal property of individuals (OJ 1983 L 105, 23 April 1983, p.
64).

imports from a Member State of

Action brought on 16 April 2004 by the Commission of
the European Communities against the Hellenic Republic

(Case C-179/04)

(2004/C 168/02)

An action against the Hellenic Republic was brought before the
Court of Justice of the European Communities on 16 April
2004 by the Commission of the European Communities, repre-
sented by Georgios Zavvos, a member of its Legal Service.

The Commission claims that the Court should:

— declare that, by failing to adopt the necessary laws, regula-
tions and administrative provisions to comply with Direc-
tive 2000/64/EC (1) of the European Parliament and of the
Council of 7 November 2000 amending Directives
85/611/EEC, 92/96/EEC and 93/22/EEC as
regards
exchange of information with third countries, and in any
event by failing to communicate such provisions to the
Commission, the Hellenic Republic has failed to fulfil its
obligations under that Directive.

— order the Hellenic Republic to pay the costs.

Pleas in law and main arguments

According to the settled case-law of the Court of Justice of the
European Communities, a Member State may not rely on
domestic circumstances or difficulties to justify failure to
comply with its obligations and the time-limits prescribed by
Community law.

(1) OJ L 290 of 17.11.200, p. 27.

Reference for a preliminary ruling by the Simvoulio tis
Epikratias by judgment of that court of 3 March 2004 in
the case of Elmeka N.E. against the Minister for Economic
Affairs

(Case C-181/04)

(2004/C 168/03)

Reference has been made to the Court of Justice of the Euro-
pean Communities by judgment of the Simvoulio tis Epikratias
(Council of State, Greece) of 3 March 2004, received at the
Court Registry on 19 April 2004, for a preliminary ruling in
the case of Elmeka N.E. against the Minister for Economic
Affairs on the following questions:

(1) Does Article 15(4)(a) of the Sixth Council Directive (77/
388/EEC) of 17 May 1977 on the harmonisation of the
laws of the Member States relating to turnover taxes –
Common system of value added tax: uniform basis of
assessment, to which Article 15(5) of that directive refers,
concern the chartering of both vessels used on the high
seas which carry passengers for reward and vessels used for
the purpose of commercial, industrial or fishing activities,
or does it concern the chartering of vessels used on the
high seas alone, when, in the latter case, Article 22(1)(d) of
Law 1642/1986 appears wider than the directive as regards
the category of vessels to which the chartering relates?

(2) For the exemption from tax in accordance with Article
15(8) of the Sixth Directive, is the service required to be
supplied to the vessel owner himself, or is the exemption
granted also in respect of a service supplied to a third
party, subject only to the condition that it meets the direct
needs of the vessels referred to in Article 15(5), that is to
say of the vessels covered by Article 15(4)(a) and (b)?

is it permitted, and subject

(3) Under the Community rules and principles which govern
to what
value added tax,
preconditions,
for tax to be charged for a past period
where the person liable did not pass tax on to the other
contracting party during that period, and, therefore, tax
was not paid to the State, because of the conviction of the
person liable, brought about by conduct of the tax authori-
ties, that he did not have to pass on tax?

Action brought on 22 April 2004 by the Commission of
the European Communities against the Italian Republic

(Case C-188/04)

(2004/C 168/04)

An action against the Italian Republic was brought before the
Court of Justice of the European Communities on 22 April
2004 by the Commission of the European Communities, repre-
sented by K. Wiedner and G. Bambara, acting as Agents.