CELEX: C1998/397/44
Language: en
Date: 1998-12-19 00:00:00
Title: Reference for a preliminary ruling by the Supremo Tribunal Administrativo, Second Chamber, by judgment of that court of 7 October 1998, in the case of Ministério Publico and António Gomes Valente v. Fazenda Pública (Case C-393/98)

19.12.98              EN                Official Journal of the European Communities                                  C 397/25
The Commission claims that the Court should:                              light passenger vehicles taking account only of the
                                                                          cylinder capacity of the vehicle, subject to
                                                                          deduction from the levy of a percentage of 18 %,
                                                                          24 %, 32 %, 41 %, 49 %, 55 %, 61 % or 67 %
Ð declare that, by not adopting within the time-limit laid
                                                                          (depending whether the imported vehicle has been
     down the laws, regulations and administrative
                                                                          in use for between one and two, two and three,
     provisions necessary to comply with Council Directive
                                                                          three and four, four and five, five and six, six and
     93/3/EEC (1) of 14 June 1993 on the hygiene of
                                                                          seven or seven and eight years) of what would be
     foodstuffs, the Hellenic Republic has failed to fulfil its
                                                                          payable on a new vehicle (imported or bought on
     obligations under that directive;
                                                                          the domestic market) and where for a vehicle
                                                                          which has been used for more than eight years
                                                                          33 % of the car tax which would be payable on a
Ð order the Hellenic Republic to pay the costs.                           new vehicle (imported or bought on the domestic
                                                                          market) has to be paid without, in either of such
                                                                          situations, account being taken of all the other
Pleas in law and main arguments adduced in support:                       factors which influence the value of a car, such as
                                                                          kilometrage, strate of upkeep and the model,
                                                                          among others, guarantee perfect neutrality of
                                                                          domestic taxation as regards competition between
The Member States are required by the binding character                   domestic and imported products (in this case cars)
of the third paragraph of Article 189 and of Article 5 of                 and is it compatible with the first paragraph of
the EC Treaty to adopt the measures needed to transpose                   Article 95 of the EC Treaty?
directives into national law before the expiry of the period
laid down for that purpose and to communicate those
measures immediately to the Commission. That period
expired on 14 December 1995 without the Hellenic                       2. It is compatible with the first paragraph of
Republic having communicated to the Commission                            Article 95 of the EC Treaty for national legislation
provisions transposing the directive at issue into national               to provide that the tax levied on an imported
law.                                                                      product and the tax levied on a similar national
                                                                          product are to be calculated differently and
                                                                          according to different procedures: the car tax on
(1) OJ L 175, 19.7.1993, p. 1.
                                                                          the imported use vehicle is calculated on the basis
                                                                          of its cylinder capacity, subject to a deduction
                                                                          based solely its years of use whereas in
                                                                          transactions on the national market involving a
                                                                          similar use vehicle no car tax is paid (since, being
                                                                          a single-stage tax, it is paid only once when the
                                                                          vehicle is put into circulation, in new condition),
Reference for a preliminary ruling by the Supremo                         when the fact is that its price may still incorporate
Tribunal Administrativo, Second Chamber, by judgment of                   a residual portion of that tax if it has not been in
that court of 7 October 1998, in the case of MinisteÂrio                  use for more than about four to five years, that
   Publico and António Gomes Valente v. Fazenda PuÂblica                  portion always being of uncertain amount, and
                                                                          not being separate from the purchase price, or
                       (Case C-393/98)                                    separable from it, because, amongst other reasons,
                                                                          the purchase of a used vehicle in Portugal is not
                        (98/C 397/44)                                     subject to car tax?
Reference has been made to the Court of Justice of the
                                                                       3. In the light of the first paragraph of Article 95 of
European Communities by a judgment of the Second
                                                                          the EC Treaty, may it be considered that such a
Chamber of the Supremo Tribunal Administrativo
                                                                          system cannot, not even in only a few cases, lead
(Supreme Administrative Court) of 7 October 1998, which
                                                                          to higher taxation of the imported product and
was received at the Court Registry on 5 November 1998,
                                                                          that the system is regulated in such a way that the
for a preliminary ruling in the case of MinisteÂrio Publico
                                                                          possibility is always concluded of an imported
and António Gomes Valente v. Fazenda PuÂblica, on the
                                                                          vehicle being taxed at a higehr level than a similar
following questions:
                                                                          national vehicle?
(a) Are the questions raised in these proceedings by the
      appellant and set out below relevant? What is the                4. May, in the light of Community law, such a
      answer to those questions under Community law?                      system be regarded as transparent to the requisite
                                                                          extent so as to make it possible to determine
                                                                          objectively whether the fiscal charge on an
      1. Does legislation, like the Portuguese legislation,               imported car exceeds that levied on a similar
         which imposes a fixed-rate levy on imported used                 national car?
 ---pagebreak--- C 397/26                EN                 Official Journal of the European Communities                                    19.12.98
      5. In the light of Community law, may such a system             Ð order the Kingdom of Belgium to pay the costs.
          be applied in a fair way to products from the
          domestic market and to imported products?
                                                                      Pleas in law and main arguments adduced in support:
(b) Does depreciation of the real value of used vehicles,
      referred to in the judgment of the European Court of
      Justice in Case C-345/95 (1) Nunes Tadeu necessarily            The pleas in law and principal arguments advanced are
      imply that a valuation or expert assessment must be             analogous to those in Case C-394/98.
      carried out on every vehicle or may the calculation be
      made in general and abstract terms by reference to a            (1) OJ L 136, 21.6.1995, p. 28.
      legal criterion?
(c) If      the     European       Commission       discontinues
      infringement proceedings against a Member State on
      the understanding that the new national legislation is
      now in conformity with Community law, may a
      national supreme court, relying on the interpretation           Action brought on 6 November 1998 by the Commission
      of Community law and of national law adopted by                 of the European Communities against the Hellenic
      the Commission, be relieved of the obligation imposed                                       Republic
      on it by Article 177 of the EC Treaty to request a
                                                                                             (Case C-398/98)
      preliminary ruling from the Court of Justice of the
      European Communities and decide the case in                                             (98/C 397/46)
      accordance with the interpretation adopted by the
      European Commission?
                                                                      An action against the Hellenic Republic was brought
(1) [1995] ECR I-479.
                                                                      before the Court of Justice of the European Communities
                                                                      on 6 November 1998 by the Commission of the European
                                                                      Communities, represented by Dimitris Triantafillou, of its
                                                                      Legal Service, and Olivier Couvert-CasteÂra, a civil servant
                                                                      on secondment to the same service, with an address for
                                                                      service in Luxembourg at the Office of Carlos Gómez de
                                                                      la Cruz, of its Legal Service, Wagner Centre, Kirchberg.
Action brought on 5 November 1998 by the Commission
of the European Communities against the Kingdom of
                              Belgium
                                                                      The Commission claims that the Court should declare
                          (Case C-395/98)                             that, by laying down and retaining a system for stocks of
                                                                      petroleum products which directly links the possibility of
                           (98/C 397/45)
                                                                      transferring to the refineries operating in the country the
                                                                      obligation to stock supplies with an obligation to obtain
                                                                      supplies of petroleum products from those refineries, and
An action against the Kingdom of Belgium was brought                  by precluding service stations from obtaining supplies
before the Court of Justice of the European Communities               from refineries or from another Member State, the
on 5 November 1998 by the Commission of the European                  Hellenic Republic has failed to fulfil its obligations under
Communities, represented by R. B. Wainwright, Principal               Article 30 of the EC Treaty.
Legal Adviser, and O. Couvert-CasteÂra, a national civil
servant on secondment to its Legal Service, acting as
Agents, with an address for service in Luxembourg at the
                                                                      Pleas in law and main arguments adduced in support:
Office of Carlos Gómez de la Cruz, Wagner Centre,
Kirchberg.
                                                                      In the Commission's view, the Greek system for
The Commission of the European Communities claims                     maintaining emergency stocks is contrary to Article 30 of
that the Court should:                                                the EC Treaty to the extent that the effect of the
                                                                      obligations imposed on the petroleum product companies
                                                                      is to confer an advantage on the products of Greek
Ð declare that, by failing to adopt or, in any event, by              refineries because the distribution companies are in reality
     failing to communicate to the Commission the laws,               obliged to obtain supplies exclusively from those
     regulations and administrative measures necessary in             refineries. The negative effects of that situation on the free
     order to comply with Commission Directive 95/13/EC               movement of petroleum products within the Community
     of 23 May 1995 implementing Council Directive 92/                are, additionally, intensified by the way in which the
     75/EEC with regard to energy labelling of household              distribution of petroleum products is organised in Greece,
     electric tumble driers (1), the Kingdom of Belgium has           whereby service-station operators are required to obtain
     failed to fulfil its obligations under that directive;           supplies exclusively from the distribution companies.