Case C-4/08: Reference for a preliminary ruling from the Verwaltungsgerichtshof Baden-Württemberg (Germany) lodged on 4 January 2008 — Michael Mario Karl Kerner v Land Baden-Württemberg
Date: 2008-01-04
Institutions: Court of Justice
Subjects: approximation of laws, driving licence, interpretation of the law, traffic regulations

29.3.2008

EN

Official Journal of the European Union

C 79/15

esterno [a final judgment drawn up by another court in a case
on the same subject] contains a finding on a fundamental issue
common to other cases, it has binding authority as regards that
issue, even if it was drawn up in relation to a different tax
period?’

incapacity for work, of an allowance that takes into account
the length of time worked and the period of contribution in
the type A country (Belgium)?

(1) Council Regulation (EEC) No 1408/71 of 14 June 1971 on the appli-
cation of social security schemes to employed persons, self-employed
persons and to members of their families moving within the Com-
munity (OJ 1971 L 149, p. 2), as amended.

Reference for a preliminary ruling from the Tribunal
du travail de Nivelles (Belgium) lodged on 8 January 2008
d'assurance
— Ketty

national

Leyman

Institut

v

maladie-invalidité (I.N.A.M.I.)

(Case C-3/08)

(2008/C 79/27)

Language of the case: French

Referring court

Tribunal du travail de Nivelles

Parties to the main proceedings

Applicant: Ketty Leyman

Defendant: Institut national d'assurance maladie-invalidité (I.N.A.
M.I.)

Reference for a preliminary ruling from the Verwaltungs-
gerichtshof Baden-Württemberg (Germany)
lodged on
4 January 2008 — Michael Mario Karl Kerner v Land
Baden-Württemberg

(Case C-4/08)

(2008/C 79/28)

Language of the case: German

Referring court

Verwaltungsgerichtshof Baden-Württemberg

Parties to the main proceedings

Appellant: Michael Mario Karl Kerner

Respondent: Land Baden-Württemberg

Questions referred

Questions referred

1. Are Article 40(3)(b) of Regulation (EEC) No 1408/71 (1) and
Article 93 of the Consolidated Laws of 14 July 1994 on
medical care and sickness insurance benefit contrary to
Article 18 of the EC Treaty in that, where a worker lives and
works in a type A country (in this case, Belgium) and moves
to a type B country (in this case,
the Grand Duchy of
Luxembourg), they do not permit, during the first year of
incapacity for work, the grant of an allowance that takes into
account the length of time worked and the period of contri-
bution in the type A country (Belgium)?

2. Are Article 40(3)(b) of Regulation (EEC) No 1408/71 and
Article 93 of the Consolidated Laws of 14 July 1994 on
medical care and sickness insurance benefit contrary to
Article 18 of the EC Treaty in that, where a worker lives and
works in a type A country (in this case, Belgium) and moves
the Grand Duchy of
to a type B country (in this case,
Luxembourg), they give rise to discrimination to the detri-
ment of a worker exercising her right of free movement in
not permitting the grant to her, during the first year of

1. Does Article 8(4) of Council Directive 91/439/EEC of 29 July
1991 on driving licences (1) preclude the application of a
provision of national law which, in the event of a previous
withdrawal of a driving licence in the Member State in ques-
tion, makes possible recognition of a driving licence issued
by another Member State on condition that it is established
that the facts which originally led to the withdrawal of the
driving licence no longer exist, even if

— recognition of that driving licence is not required in the
interest of giving effect to the fundamental freedom of
free movement on the part of citizens of the Union,

— the driving licence was issued in the other Member State
in clear breach of the provisions of the Directive (resi-
dence requirement),

— the issuing Member State itself, when issuing the driving
licence, must have been aware of this clear breach of the
provisions of the Directive,

— according to the Member State of residence, the issuing
Member State generally refuses to annul driving licences
issued in breach of Community law,

C 79/16

EN

Official Journal of the European Union

29.3.2008

— the driving licence was obtained by the person concerned
in the other Member State through an abusive exercise of
rights in order
the
residence, which, according to the
Member State of
Directive, are the provisions which determine reissue, and
the issuing Member State must have been aware of that
abusive exercise of rights,

the provisions of

to circumvent

— and the medical examination to determine the fitness of
the person concerned to drive, carried out before issue of
the driving licence in knowledge of the reasons for the
original withdrawal of the driving licence in the issuing
the requirements
Member State, clearly did not meet
imposed on it in view of the grounds for the earlier with-
drawal of the driving licence, with the result that the
continued presence on the roads of the person involved
represents a significant danger to the life and physical
safety of other road users?

In the event that the answer to Question 1 is in the affirmative:

2. Is Article 8(2) of Directive 91/439/EEC to be interpreted as
meaning that while, in the circumstances described in Ques-
tion 1, the Member State of residence is obliged to recognise
the driving licence issued in another Member State of the
European Union, with the result that, within its national
territory, the holder is in principle entitled to drive motor
vehicles, the Member State of residence is, in the interests of
road safety, none the less at the very least empowered, in
order to safeguard against the significant danger presented
by this licence holder, to verify his fitness to drive in view of
the circumstances which previously led to the withdrawal of
the driving licence in the Member State of residence and
which, because of the subsequent issue of the driving licence
in another Member State of the European Union, precisely
cannot be regarded as having been overcome?

(1) OJ L 237, p. 1.

Action brought on 9 January 2008 — Commission of the
European Communities v Republic of Finland

(Case C-10/08)

(2008/C 79/29)

Language of the case: Finnish

Form of order sought

— declare that, by maintaining in force Paragraph 5 of the
Autoverolaki (Law on car tax) and Paragraph 102(1)(4) of
the Arvonlisäverolaki (Law on value added tax), applying, for
the purposes of car tax assessment, the same taxable value
to cars under three months old as to new cars and applying
to cars under six months old a scale according to which the
value of a car decreases by 0,8 % per month in circum-
stances where it has not been established that there are any
such vehicles on the Finnish market, the Republic of Finland
has failed to fulfil
its obligations under Article 90 of the
EC Treaty and that, by allowing the tax under Paragraph 5
of the Autoverolaki to be deducted from the value added tax
its obligations
payable on sale, Finland has failed to fulfil
under Article 17(1) and (2) of Sixth Council Directive
77/388/EEC (1), replaced after
the recasting of Directive
77/388/EEC by Articles 167 and 168 of Council Directive
2006/112/EC (2);

— order the Republic of Finland to pay the costs.

Pleas in law and main arguments

A person liable for value added tax who imports a vehicle into
Finland has to pay value added tax on car tax to the customs
authorities in accordance with Paragraph 5 of the Autoverolaki,
but since, according to Paragraph 102(1)(4) of the Arvonlisäver-
olaki, he can deduct the corresponding amount of VAT payable
on the sale, there is no VAT on car tax left in the value of the
vehicle. The VAT on car tax which has been deducted is not
transferred to the amount the consumer has to pay. If a private
individual registers a vehicle for the first time in Finland he also
has to pay VAT on car tax to the customs authorities but he
cannot deduct it. That system, which distinguishes between sales
by persons liable to VAT related to commercial activities at
different stages of trade and acquisitions by final consumers
from other Member States means that the VAT on car tax that a
private individual has to pay for a used vehicle obtained in
time in
another Member State and registered for
Finland is probably higher than the residual VAT on car tax in
the value of a similar used car which has already been registered
in Finland when the person liable to car tax was also liable to
VAT and the vehicle has been sold in connection with taxable
commercial activities,
the
vehicle does not include VAT on car tax because it has been
deducted in its entirety, infringes Article 90 of the EC Treaty.

in which latter case the value of

the first

Parties

Applicant: Commission of the European Communities (repre-
sented by: I. Koskinen and D. Triantafyllou, acting as Agents)

Defendant: Republic of Finland

In Case C-101/00 Siilin the Court held that VAT on car tax was
not VAT within the meaning of the Sixth Directive. The right
under the Finnish Arvonlisäverolaki to deduct VAT on car tax
related to commercial activities subject to tax was contrary to
the Sixth VAT Directive 77/388/EEC, according to which VAT
may be deducted only from VAT.