CELEX: C2003/044/30
Language: en
Date: 2003-02-22 00:00:00
Title: Case C-469/02: Action brought on 23 December 2002 by the Commission of the European Communities against the Kingdom of Belgium

C 44/16               EN                        Official Journal of the European Union                                       22.2.2003
Under the ‘amended scheme’ (see the Notice of the Ministry of           seeking employment and obstacles that prevent an employer
Transport of June 1999 on the registration and MOT-testing              from offering such use will have the result of discouraging
of vehicles), Danish workers resident in Denmark may use                Danish residents — in contrast to persons resident outside
within Denmark a foreign registered vehicle without having to           Denmark — from seeking employment in a foreign undertak-
register it in Denmark, subject to compliance with the                  ing offering such ancillary private use of a company car.
condition that the work for the undertaking or at the
established place of operation outside Denmark constitutes the
main activity of the person concerned. The full registration            The Danish Government has set out four principal grounds of
duty need not therefore be paid inasmuch as registration is not
                                                                        justification: the interest in maintaining supervision (road
required. On the other hand, the Law on registration duty does
                                                                        safety and the monitoring and control of road users), the
require payment of a charge which is defined as a part payment          interest in preventing the erosion of tax revenue in Denmark,
calculated on the basis of the full registration duty or —
                                                                        the fact that certain barriers resulting from differences in
following authorisation and subject to the further condition            taxation levels must be accepted, and the interest in achieving
that the car is used solely for commercial purposes — as a
                                                                        equivalent conditions of competition as between Danish and
periodic payment of a fixed amount.
                                                                        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.
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                  Finally, the Commission disputes the contention that Council
contrary to Article 39 EC to introduce or retain national               Directive 83/182/EEC (2) can be construed as meaning that the
provisions which give rise to obstacles to the free movement            Danish rules may be treated as lawful, quite apart from the fact
of workers, irrespective of whether the national provisions             that provisions of secondary Community law cannot exempt
apply indiscriminately, if the provisions affect workers’ access        a Member State from its obligations under the combined
to the labour market. The Danish rules are precisely of such a          provisions of Articles 39 EC and 10 EC.
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                (1 ) Case C-297/99 Skills Motor Coaches and Others [2001] ECR I-
duty. There is thus clear discrimination of a person resident in             573.
Denmark vis-à-vis a person resident outside Denmark in                  (2 ) Council Directive 83/182/EEC of 28 March 1983 on tax exemp-
respect of precisely the same use in Denmark of a foreign                    tions within the Community for certain means of transport
                                                                             temporarily imported into one Member State from another (OJ
registered company car. In conclusion, a worker who does not
                                                                             L 105 of 23.4.1983, p. 59).
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               Action brought on 23 December 2002 by the Commission
Denmark or a barrier to an employer’s prospects of recruiting           of the European Communities against the Kingdom of
workers resident in Denmark. There will be a barrier irrespec-                                        Belgium
tive of whether it is the employer or the employee who must
pay the costs and obtain authorisation or effect registration.
                                                                                                  (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        An action against the Kingdom of Belgium was brought
to one’s place of work cannot be treated as constituting ‘private       before the Court of Justice of the European Communities on
use’; this follows from the judgment in Case C-297/99 Skills            23 December 2002 by the Commission of the European
Motor Coaches Ltd ( 1). The possibility of ancillary private use        Communities, represented by H. Michard, acting as Agent,
of a company car is an obvious incentive when it comes to               with an address for service in Luxembourg.
 ---pagebreak--- 22.2.2003                EN                        Official Journal of the European Union                                        C 44/17
The applicant claims that the Court should:                                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
—     Declare that by making the granting and payment of a                        pour la Gestion de l’Environnement (‘IBGE’)
      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                                       (Case C-472/02)
      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                                         (2003/C 44/31)
      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.
                                                                           Reference has been made to the Court of Justice of the
                                                                           European Communities by judgment of the Cour d’appel de
Pleas in law and main arguments                                            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
(The residence clause) The Belgian authorities announced the               following questions:
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.
                                                                           Where a Member State has recourse to the mechanism by
(The clauses relating to payment in Belgium) The requirement               which the competent authority of dispatch gives notice of a
that the persons affected by the benefit should have a bank                consignment note under Articles 3(8) and 6(8) of Council
account in Belgium is, in certain cases, such as to call in                Regulation No 259/93 of 1 February 1993 on the supervision
question the effects of the amendments to the legislation at               and control of shipments of waste within, into and out of the
issue. Indeed, there are instances where, in order to open a               European Community (1), must Articles 3(8), 4(3), 6(8), 7(4)
bank account or to maintain it, certain banks require a                    and 26 of the regulation be interpreted as meaning:
certificate of residence.
                                                                           (a)  that the competent authority of dispatch within the
(Procedure for dealing with previous refusals) It is essential, for             meaning of the regulation, which is empowered to verify
the purpose of legal certainty, that the real rights of the                     whether a planned shipment classified in the notification
individual are protected from the harmful consequences of                       as a ‘shipment of waste for recovery’ actually fits that
conduct by the public authorities which is based on rules                       classification, may, when it considers that the classifi-
which are incompatible with Community law. Failure of a                         cation is incorrect,
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                        (1) refuse to transmit the consignment note because of
benefit was refused on the basis of the former rules may make                         that incorrect classification and ask the notifier to
a fresh application on the basis of the new rules, the cases                          transmit a new consignment note to it,
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                     (2) transmit the consignment note after reclassifying
that they were not resident in Belgium.                                               the planned shipment as a ‘shipment of waste for
                                                                                      disposal’,
( 1) OJ, English Special Edition 1968 (II), p 475.
( 2) OJ, English Special Edition 1972 (I), p 159.                               (3) transmit the consignment note containing the incor-
                                                                                      rect classification, immediately accompanying its
                                                                                      transmission with an objection based on that incor-
                                                                                      rect classification?