CELEX: 62008CC0018
Language: en
Date: 2008-09-25
Title: Opinion of Advocate General Kokott delivered on 25 September 2008. # Foselev Sud-Ouest SARL v Administration des douanes et droits indirects. # Reference for a preliminary ruling: Tribunal d’instance de Bordeaux - France. # Tax on motor vehicles - Directive 1999/62/EC - Charging of heavy goods vehicles for the use of certain infrastructures - Article 6(2)(b) - Commission decision approving an exemption - No direct effect. # Case C-18/08.

OPINION OF ADVOCATE GENERAL
      KOKOTT
      delivered on 25 September 2008 (1)
      
      Case C‑18/08
      Foselev Sud-Ouest SARL
      v
      Administration des douanes et droits indirects
      (Reference for a preliminary ruling from the Tribunal d’instance de Bordeaux, France)
      (Vehicle tax – Directive 1999/62/EC – Exemption of certain vehicles used exclusively for the carriage of permanently installed equipment for public and industrial
         works – Agreement of the Commission – Direct effect of a decision)
      I –  Introduction 
      1.        The French Republic intended to exempt certain heavy goods vehicles from vehicle tax (taxe spéciale sur certains véhicules routiers, also referred to as taxe à l’essieu (axle tax)). Directive 1999/62/EC of the European Parliament and of the Council of 17 June 1999 on the charging of heavy goods
         vehicles for the use of certain infrastructures (2) harmonises that tax. According to that directive, application of the exemption required the agreement of the Commission,
         which the latter also gave in the form of a decision addressed to the French Republic. The French decree which introduced
         the exemption was not enacted until more than one year later. 
      
      2.        It is now in dispute whether a taxable person, relying directly on the Commission’s decision, is entitled to exemption from
         the tax in respect of the period prior to the enactment of the decree. That question has arisen not only before the Tribunal
         d’instance de Bordeaux (Court of First Instance, Bordeaux) (France), which has submitted the present reference to the Court.
         Indeed, other courts of first instance, as well as the Cour d’appel de Lyon (Court of Appeal, Lyon) (France), have already
         given divergent rulings on the matter.
      
      II –  Legal framework  
      3.        Article 6(2) of Directive 1999/62 provides: 
      
      ‘Member States may apply reduced rates or exemptions for: 
      … 
      (b)      vehicles which travel only occasionally on the public roads of the Member State of registration and are used by natural or
         legal persons whose main occupation is not the carriage of goods, provided that the transport operations carried out by these
         vehicles do not cause distortions of competition, and subject to the Commission’s agreement. …’ 
      
      4.        After the French Republic had applied for the Commission’s agreement to the exemption of certain vehicles, the Commission
         adopted, on 20 June 2005, Decision 2005/449/EC, (3) which was published in the Official Journal of the European Communities on 21 June 2005. The Decision states: 
      
      ‘Article 1
      The Commission hereby gives its agreement to exempt until 31 December 2009 from vehicle tax in accordance with Article 6(2)(b)
         of Directive 1999/62/EC the following vehicles of 12 tonnes or more, which are used exclusively for the carriage of permanently
         installed equipment for public and industrial works in France: 
      
      1.      Self-propelled lifting and handling gear (cranes mounted on road chassis); 
      2.      Mobile pumps or pumping stations permanently mounted on road chassis;
      3.      Mobile motor compressor sets permanently mounted on road chassis;
      4.      Concrete mixers and pumps permanently mounted on road chassis (except drum vehicles for transporting concrete); 
      5.      Mobile generating sets permanently mounted on road chassis; 
      6.      Mobile drilling machines permanently mounted on road chassis. 
      Article 2
      This Decision is addressed to the French Republic.’ 
      5.        By way of Decree No 2006-818 of 7 July 2006, which was published on 9 July 2006 in the Official Journal of the French Republic, the French State exempted the vehicles referred to in Decision 2005/449 from vehicle tax until 31 December 2009. 
      
      III –   The facts, reference for a preliminary ruling and proceedings  
      6.        In the dispute in the main proceedings, Foselev Sud-Ouest SARL (‘Foselev’) seeks from the Administration des douanes et des
         droits indirects (French Customs and Excise Authority) the refund of EUR 1 973.74 in respect of vehicle tax together with
         interest and costs, which it was unduly required to pay from 20 June 2005 to 9 July 2006. The applicant claims that its entitlement
         to the tax exemption already results directly from Commission Decision 2005/449, with the result that no further tax was payable
         from the time at which that decision was adopted, and not merely from the time at which the decree entered into force. 
      
      7.        By judgment of 4 December 2007 the Tribunal d’instance de Bordeaux, before which the dispute was brought, referred the following
         question to the Court of Justice for a preliminary ruling:
      
      Article 6(2)(b) of Directive 1999/62/EC of the European Parliament and of the Council of 17 June 1999 on the charging of heavy
         goods vehicles for the use of certain infrastructures provides for the possibility for a Member State to exempt certain categories
         of vehicle [from vehicle tax]. In this context, is the authorisation given to France by the Commission, in Decision 2005/449/EC,
         to exempt certain categories of vehicles directly applicable to individuals or, as it concerns an authorisation decision addressed
         to France, is a measure transposing it into national law necessary? 
      
      8.        Foselev, the French and Italian Governments and the Commission of the European Communities have submitted written observations
         to the Court. There was no oral hearing.  
      
      IV –  Legal assessment 
      9.        Pursuant to the fourth paragraph of Article 249 EC, decisions are binding in their entirety upon those to whom they are addressed.
         Decision 2005/449 is addressed to the French Republic pursuant to Article 2 thereof.
      
      10.      However, as the Court has already held, it would be incompatible with the binding effect attributed to decisions by Article
         249 EC to exclude in principle the possibility that persons affected may invoke the obligation imposed by a decision. (4) Accordingly, a provision of a decision addressed to a Member State may be relied on as against that Member State where the
         provision in question imposes on its addressee an obligation which is unconditional and sufficiently clear and precise. (5)
      
      11.      Unlike the governments which submitted observations and the Commission, Foselev takes the view that Decision 2005/449 imposes
         an obligation on the French Republic to introduce the exemption referred to therein.  
      
      12.      The question whether the Decision gives rise to an unconditional and sufficiently clear and precise obligation to exempt the
         vehicles specified from the tax from a certain date must be resolved having regard to its wording and the basis on which that
         decision is authorised, namely Article 6(2)(b) of Directive 1999/62. 
      
      13.      The wording of Decision 2005/449 does not establish any such obligation. On the contrary, Article 1 of the Decision confines
         itself to giving the Commission’s agreement to the measures requested by France. It is true that the provision allows the
         exemption only until 31 December 2009. It does not, however, set a date from which the exemption is to begin to apply. The
         French Republic was therefore free, even after the adoption of the agreement decision, to introduce the approved exemption
         at any point in time prior to 31 December 2009 through the enactment of the corresponding decree or possibly even to make
         no use whatsoever of the authorisation.   
      
      14.      Article 6(2)(b) of Directive 1999/62 gives the Member States the option of exempting from tax the vehicles referred to in the provision or of making them subject to reduced rates of tax, as is
         unambiguously clear from the use of the words ‘may apply’. Accordingly, the Member States enjoy discretion as to whether to
         make use of the option for which the Directive provides.
      
      15.      The application of the corresponding national exemption rules is conditional on the Commission’s agreement. As the Commission
         correctly states in its written observations, its decision to agree to the tax exemption cannot transform the discretion which
         the Directive confers on the Member State into a duty to adopt the exemption.    
      
      16.      It is true that, in the judgment in Hansa Fleisch, the Court stated that the mere fact that a decision allows the Member States to which it is addressed to derogate from clear
         and precise provisions of that decision does not in itself deprive those provisions of direct effect. (6)
      
      17.      The legal situation in Hansa Fleisch is not, however, comparable to that in the present case. The decision applicable in Hansa Fleisch set a flat‑rate fee for meat hygiene inspections but allowed the Member States to apply fees which derogated from that flat‑rate
         and which corresponded to the actual costs of the inspections. Unlike Decision 2005/449, the decision in Hansa Fleisch therefore laid down an obligation to charge certain fees. That decision did, admittedly, permit the Member States to set
         fees which derogated from the flat‑rate fees.  However, that decision also laid down conditions relating to the operation
         of those national derogations. In that situation, the Court considered it necessary that the individual person paying the
         charge should be able to rely directly on the decision before a national court for verification of whether the derogation
         from the flat-rate fees satisfied the terms of the decision. (7)
      
      18.      The findings of the Court in Hansa Fleisch cannot therefore be transposed to the present case, since neither Decision 2005/449 nor Directive 1999/62, which forms the
         basis of that decision, imposes an obligation on the Member States to introduce the tax exemption, compliance with which would
         have to be subject to judicial review.  In the period in respect of which Foselev seeks the tax refund, there were, in addition,
         still no national implementation measures whatsoever, the operation of which would have required judicial review in the light
         of the Commission’s decision. 
      
      19.      A parallel with the Hansa Fleisch case could possibly have been drawn if the Commission had allowed the French Republic to apply a reduced rate to certain
         categories of vehicles and subsequently tax rates derogating from those reduced rates had been applied. That is not, however,
         the case. The fact thus remains that Decision 2005/449 does not impose on the French Republic any obligation to apply the
         exemption from a specific point in time.   
      
      20.      Foselev’s reference to Article 254(3) EC alters nothing in this regard. According to that provision, decisions are to be notified
         to those to whom they are addressed and are to take effect upon such notification. However, only the rule which the decision
         in question also actually contains is to take effect. 
      
      21.      The notification of Decision 2005/449 to the French Republic (or possibly also its publication in the Official Journal of the European Communities (8)) therefore has the effect that the agreement to the application of the exemption takes effect. If the French legislature
         had already enacted the decree before the agreement had been given and made application of the decree subject to the suspensive
         condition that the Commission should agree to the measure, Foselev could already have relied on the exemption from the time
         at which the Decision took effect. (9) In that case, however, the exemption would not have resulted directly from the Decision but from the decree.  However, the
         national legislature chose a different course of action, which was also open to it: it waited for the Commission’s agreement
         and enacted the decree which incorporated the exemption into national tax law only after that agreement had been given. The
         fact that more than one year elapsed between the two measures is irrelevant from the point of view of Community law.
      
      V –  Conclusion
      22.      In the light of the foregoing considerations, I propose that the Court should reply as follows to the question referred for
         a preliminary ruling by the Tribunal d’instance de Bordeaux:
      
      Commission Decision 2005/449/EC of 20 June 2005, by which the Commission gave its agreement to the French Republic to exempt
         certain categories of vehicles from vehicle tax pursuant to Article 6(2)(b) of Directive 1999/62/EC, does not confer on individuals
         any direct entitlement to exemption. Rather, entitlement to the tax exemption arises only once the Member State concerned
         has adopted a measure transposing the exemption into national law.
      
      1 –	Original language: German.
      
      2 –	OJ 1999 L 187, p. 42.
      
      3 – 	Commission Decision 2005/449/EC of 20 June 2005 concerning a request for exemption from the vehicle tax rules submitted
         by France pursuant to Article 6(2)(b) of Directive 1999/62/EC of the European Parliament and of the Council on the charging
         of heavy goods vehicles for the use of certain infrastructures (OJ 2005 L 158, p. 23). 
      
      4 –	Case 9/70 Grad [1970] ECR 825, paragraph 5, and Case C‑156/91 Hansa Fleisch [1992] ECR I‑5567, paragraph 12. See in detail, also, as regards the direct effect of decisions, the Opinion of Advocate
         General Trstenjak in Case C‑80/06 Carp [2007] ECR I‑4473, point 55 et seq.).  
      
      5 –	Grad (cited in footnote 4), paragraph 9, and Hansa Fleisch (cited in footnote 4), paragraph 13. 
      
      6 –	Hansa Fleisch (cited in footnote 4), paragraph 15.
      
      7 –	See Hansa Fleisch (cited in footnote 4), paragraph 15, which refers to Case 41/74 Van Duyn [1974] ECR 1337, paragraph 7. 
      
      8 –	See also, on the connection between notification and publication in the Official Journal, my Opinion of 13 December 2007
         in Case C‑413/06 P Bertelsmann and Others v Impala, not yet published in the ECR, point 82. 
      
      9 –	If one were to go along with Foselev’s legal position, the French legislature would either have had to proceed in this
         way or give retroactive effect to the exemption, since otherwise there would still have been an infringement of the ‘obligation’
         to introduce the exemption in the period between the notification of the decision and the enactment of the decree.