Ioan Tatu v Statul român prin Ministerul Finanţelor şi Economiei and Others.
Date: 2011-04-07
27. It should be recalled that, while any question relating to European Union law enjoys a presumption of relevance, the Court nevertheless cannot give an answer where it is quite obvious that the interpretation of European Union law that is sought bears no relation to the actual facts or purpose of the main proceedings (see, to that effect, inter alia, Joined Cases C‑94/04 and C‑202/04 Cipolla and Others  [2006] ECR I‑11421, paragraph 25; Joined Cases C‑570/07 and C‑571/07 Blanco Pérez and Chao Gómez  [2010] ECR I‑0000, paragraph 36; and Case C‑225/09 Jakubowska and Others  [2010] ECR I‑0000, paragraph 28).
32. As the Advocate General observes in point 20 et seq. of her Opinion, a tax levied by a Member State on the registration of motor vehicles in its territory for the purpose of being placed in circulation is neither a customs duty nor a charge having equivalent effect to a customs duty within the meaning of Articles 28 TFEU and 30 TFEU. Such a tax is an internal tax and must therefore be examined in the light of Article 110 TFEU (see, inter alia, Case C‑383/01 De Danske Bilimportører  [2003] ECR I‑6065, paragraph 34, and Joined Cases C‑290/05 and C‑333/05 Nádasdi and Németh  [2006] ECR I‑10115, paragraphs 38 to 41).
33. Moreover, since the scope of Article 34 TFEU does not extend to the internal taxes referred to in Article 110 TFEU, a tax on registration such as that at issue in the main proceedings cannot be assessed from the point of view of the rules on quantitative restrictions on imports and charges having equivalent effect to such restrictions (see, to that effect, Case C‑383/01 De Danske Bilimportører , paragraph 32, and Case C‑313/05 Brzeziński  [2007] ECR I‑513, paragraph 50).
34. The fact remains that the aim of Article 110 TFEU is to ensure free movement of goods between the Member States in normal conditions of competition. It is intended to eliminate all forms of protection which may result from the application of internal taxation that discriminates against products from other Member States (see, inter alia, Case C‑47/88 Commission  v Denmark  [1990] ECR I‑4509, paragraph 9; Brzeziński , paragraph 27; and Case C‑2/09 Kalinchev  [2010] ECR I‑0000, paragraph 37).
35. To that end, the first paragraph of Article 110 TFEU prohibits all Member States from imposing on products of the other Member States internal taxation in excess of that imposed on similar domestic products. That provision of the Treaty seeks to guarantee the complete neutrality of internal taxation as regards competition between products already on the domestic market and imported products (Case C‑47/88 Commission  v Denmark , paragraphs 8 and 9, and Case C‑387/01 Weigel  [2004] ECR I‑4981, paragraph 66).
37. However, even if the conditions for direct discrimination are not met, internal taxation may be indirectly discriminatory as a result of its effects ( Nádasdi and Németh , paragraph 47).
39. According to settled case-law, there is a breach of Article 110 TFEU where the amount of tax levied on an imported second-hand vehicle exceeds the residual tax incorporated in the value of similar second-hand vehicles already registered on national territory (Case C‑345/93 Nunes Tadeu  [1995] ECR I‑479, paragraph 20; Case C‑393/98 Gomes Valente  [2001] ECR I‑1327, paragraph 23; and Case C‑101/00 Tulliasiamies and Siilin  [2002] ECR I‑7487, paragraph 55).
40. The Court has stated that, when a tax on registration is paid in a Member State, the amount of that tax is incorporated in the value of the vehicle. Thus, if a vehicle registered in the Member State in question is subsequently sold as a second-hand vehicle in that Member State, its market value, including the residual registration tax, will be equal to a percentage of its original value, determined by depreciation ( Nádasdi and Németh , paragraph 54). Therefore, to ensure the neutrality of the tax, the value of the imported second-hand vehicle taken as the basis of taxation must reflect the value of a similar vehicle already registered on national territory ( Weigel , paragraph 71, and Case C‑74/06 Commission  v Greece  [2007] ECR I‑7585, paragraph 28).
41. To obtain that result, the actual depreciation of imported second-hand vehicles must be taken into account in calculating the amount of tax. That taking into account need not necessarily involve an assessment or inspection of every vehicle. A Member State may, avoiding the inherent burden of such a system, establish, by means of fixed scales determined by statute, regulation or administrative provision and calculated on the basis of criteria such as a vehicle’s age, kilometrage, general condition, propulsion method, make or model, a value for second-hand vehicles which, as a general rule, would be very close to their actual value ( Gomes Valente , paragraph 24; Weigel , paragraph 73; and Commission  v Greece , paragraph 29).
42. Those objective criteria for assessing the depreciation of motor vehicles have not been listed by the Court as being obligatory ( Commission  v Greece , paragraph 37). They need not thus necessarily be applied cumulatively. However, the application of a scale based on a single criterion of depreciation, such as the age of the motor vehicle, does not guarantee that the scale reflects the actual depreciation of those vehicles (see, to that effect, Gomes Valente , paragraphs 28 and 29, and Commission  v Greece , paragraphs 38 to 42). In particular, where kilometrage is not taken into account, the scale adopted by the legislation at issue does not, as a general rule, lead to a reasonable approximation of the actual value of imported second-hand vehicles ( Commission  v Greece , paragraph 43).
44. By introducing into the calculation of the tax the vehicle’s age and actual annual average kilometrage, and by adding to the use of those criteria the option of taking into account, at not excessive cost, the condition of the vehicle and its equipment by means of an inspection by the competent motor vehicle registration authority, legislation such as that at issue in the main proceedings ensures that the tax is reduced in accordance with a reasonable approximation of the actual value of the vehicle.
45. That conclusion is borne out by the fact that, in the fixed scales in Annex 4 to OUG No 50/2008, due account is taken of the circumstance that the annual depreciation in value of motor vehicles is generally more than 5% and is not linear, particularly in the first years, in which it is much greater than subsequently (see Commission  v Greece , paragraph 30 and the case-law cited).
46. Moreover, the Romanian Government was entitled to take the view that the depreciation criteria relating to the condition of the vehicle and its equipment can be correctly applied only by having recourse to an individual inspection of the vehicle by an expert, and that, to prevent inspections from taking place too often and thereby imposing an administrative and financial burden on the system, the taxpayer should be required to bear the cost of the inspection.
50. It must be recalled that, as the Court stated in paragraph 49 of Nádasdi and Németh , Article 110 TFEU is not intended to prevent a Member State from introducing new taxes or from changing the rate or basis of assessment of existing taxes.
51. Moreover, if a Member State introduces a new tax law, it obviously determines that it is to apply from a certain date. The tax applied after the entry into force of that law may therefore differ from the rate of tax previously in force. As the Court held in paragraph 49 of Nádasdi and Németh , relied on by the Romanian Government, that circumstance cannot in itself be regarded as discriminating between earlier situations and those subsequent to the entry into force of the new legislation.
52. It does not follow, on the other hand, from Nádasdi and Németh  that the Member States’ powers to make new tax arrangements are unlimited. On the contrary, it is settled case-law that the prohibition laid down in Article 110 TFEU must apply whenever a fiscal charge is liable to discourage imports of goods originating in other Member States in favour of domestic goods (see, to that effect, Case 252/86 Bergandi [1988] ECR 1343, paragraph 25; Case C‑45/94 Ayuntamiento de Ceuta  [1995] ECR I‑4385, paragraph 29; and C‑221/06 Stadtgemeinde Frohnleiten and Gemeindebetriebe Frohnleiten  [2007] ECR I‑9643, paragraph 40).
53. Article 110 TFEU would be deprived of meaning and purpose if it were open to the Member States to introduce new taxes which had the purpose or effect of discouraging the sale of imported products in favour of the sale of similar products available on the domestic market which had been placed on that market before those taxes entered into force. Such a situation would allow the Member States, by introducing internal taxes designed in such a way as to have the above effect, to circumvent the prohibitions in Articles 28 TFEU, 30 TFEU and 34 TFEU.
54. In the case of taxes on motor vehicles, the absence of harmonisation in this field means that each Member State can arrange its tax measures in accordance with its own assessments. Such assessments and the measures adopted to implement them must, however, be free of the effect described in the preceding paragraph (see, to that effect, Case C‑451/99 Cura Anlagen  [2002] ECR I‑3193, paragraph 40; Case C‑464/02 Commission  v Denmark  [2005] ECR I‑7929, paragraph 74; and Case C‑98/05 De Danske Bilimportører  [2006] ECR I‑4945, paragraph 28).
55. It must be recalled here that motor vehicles present on the market in a Member State are ‘domestic products’ of that State within the meaning of Article 110 TFEU. Where those products are placed on the market for second-hand vehicles in that Member State, they must be regarded as ‘similar’ to imported second-hand vehicles of the same type, characteristics and wear. Second-hand vehicles purchased on the market of that Member State and those purchased in other Member States in order to be imported and placed in circulation in the former State are competing products (see, inter alia, Case C‑47/88 Commission  v Denmark , paragraph 17, and Kalinchev , paragraphs 32 and 40).
56. It follows from the above principles that Article 110 TFEU requires each Member State to select and arrange taxes on motor vehicles in such a way that they do not have the effect of promoting sales of domestic second-hand vehicles and so discouraging imports of similar second-hand vehicles.
58. However, it is clear from the documents before the Court that the legislation has the effect that imported second-hand vehicles of considerable age and wear are, despite the application of a large reduction in tax to take account of depreciation, subject to a tax which may approach 30% of their market value, while similar vehicles offered for sale on the domestic second-hand vehicle market are not burdened by such a tax charge. It cannot be disputed that, in those circumstances, OUG No 50/2008 has the effect of discouraging the import and placing in circulation in Romania of second-hand vehicles purchased in other Member States.
61. In the light of all the foregoing, the answer to the question is that Article 110 TFEU must be interpreted as precluding a Member State from introducing a pollution tax levied on motor vehicles on their first registration in that Member State if that tax is arranged in such a way that it discourages the placing in circulation in that Member State of second-hand vehicles purchased in other Member States without discouraging the purchase of second-hand vehicles of the same age and condition on the domestic market.
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