Commission of the European Communities v Kingdom of the Netherlands.
Date: 2007-09-20
53. According to the case-law of the Court, the prohibition of measures having equivalent effect to restrictions which is set out in Article 28 EC covers all rules enacted by the Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade (Case C‑217/99 Commission  v Belgium  [2000] ECR I‑10251, paragraph 16; Case C‑65/05 Commission  v Greece  [2006] ECR I‑10341, paragraph 27; and Case C‑54/05 Commission  v Finland  [2007] ECR I‑0000, paragraph 30). Thus, the mere fact that an importer is deterred from introducing or marketing the products in question in the Member State concerned amounts to a hindrance to the free movement of goods ( Commission  v Belgium , paragraph 18, and Case C‑254/05 Commission  v Belgium  [2007] ECR I‑0000, paragraph 30).
54. In the present case, it is apparent from the case-file that the Kingdom of the Netherlands requires vehicles to be identified before they are registered. Where a vehicle which has previously been registered in another Member State is imported, that identification is carried out in accordance with Articles 2(b) and 4 of Directive 1999/37 by means of the registration certificate issued by that other Member State.
55. The Commission nevertheless claims that the Kingdom of the Netherlands is hindering the free movement of goods on the ground that the identification procedure is not just a purely administrative formality, but includes the obligation to present the vehicle to the RDW, thereby allowing the inspector to check whether the vehicle is actually present in the territory of the Netherlands and corresponds to the data in the registration certificate issued by the other Member State. According to the Commission, that check, which lasts approximately 25 minutes and which cost EUR 45 at the time of the pre-litigation procedure, makes the import of vehicles into the Netherlands less attractive.
56. The Commission’s argument cannot be upheld.
58. That is a simple administrative formality, therefore, which does not introduce any additional check, but which is integral to the actual processing of the registration application and also to the conduct of the associated procedure.
64. As a preliminary point, it must be observed that, according to consistent case-law, the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation obtaining in the Member State at the end of the period laid down in the reasoned opinion (see, inter alia, Case C‑63/02 Commission  v United Kingdom  [2003] ECR I‑821, paragraph 11, and Case C‑135/03 Commission  v Spain  [2005] ECR I‑6909, paragraph 31). The Court cannot take account of any subsequent changes (see, inter alia, the judgment of 18 November 2004 in Case C‑482/03 Commission  v Ireland , not published in the ECR, paragraph 11).
67. As regards the roadworthiness test as to the general condition of vehicles, the objectives of Directive 96/96, set out in recital (33) in the preamble to that Directive, are to achieve harmonisation of the rules on roadworthiness tests, to prevent distortion of competition between road hauliers and to guarantee that vehicles are properly checked.
68. Article 3(1) of Directive 96/96 gives Member States a margin of discretion. However, Article 3(2) requires Member States to recognise certificates issued in other Member States which show that the vehicle in question has passed a roadworthiness test complying with at least the provisions of that Directive. Nevertheless, Article 5 of Directive 96/96 lists the additional tests or conditions which a Member State is free to impose, as against those referred to in Annexes I and II to the Directive, provided that those tests are not already covered by that certificate (see, to that effect, Case C-451/99 Cura Anlagen  [2002] ECR I‑3193, paragraph 62).
69. In the present case, under procedure 3 (which applies to vehicles which are more than three years old and have Community type-approval, vehicles previously registered in a Member State which have been given national type- or single vehicle approval in that State, and also vehicles previously registered in the Netherlands which have Netherlands type-approval), the registration of such vehicles is preceded by an inspection of their general condition, with account being taken of the registration certificate and the certificate of conformity issued in other Member States. By contrast, vehicles which are less than three years old and which were previously registered in other Member States are not required to undergo a test as to their general condition before registration.
70. Procedure 3 cannot be justified on the basis of Directive 96/96, since, contrary to Article 3(2) of that Directive, it does not incorporate the principle of recognition of documents issued by the other Member States which certify that a vehicle has passed a roadworthiness test.
71. Therefore, it is necessary to ascertain, second, whether the requirement that vehicles which are more than three years old and which have previously been registered in another Member State must be submitted for testing as to their general condition prior to registration in the Netherlands constitutes a measure having equivalent effect to a quantitative restriction on imports, prohibited under Article 28 EC, and, if so, whether such a requirement may nevertheless be justified on grounds of the protection of interests referred to in Article 30 EC (see, to that effect, Case C‑150/00 Commission  v Austria  [2004] ECR I‑3887, paragraph 80).
73. In the present case, by requiring vehicles to undergo a test as to their general condition (such as that provided for in procedure 3) prior to registration in the Netherlands, the Netherlands authorities submit all vehicles which are more than three years old and have previously been registered in other Member States for such testing in a general and systematic way, without taking any account whatsoever of tests that may have already been carried out by those Member States. Therefore, inasmuch as the test is carried out in addition to roadworthiness tests recently carried out in other Member States, the results of which are not recognised, some persons concerned may be deterred from importing into the Netherlands vehicles which are more than three years old and which have previously been registered in other Member States.
75. However, it is clear from settled case-law that national legislation which constitutes a measure having equivalent effect to quantitative restrictions can be justified on one of the grounds of public interest laid down in Article 30 EC or by imperative requirements (see, to that effect, Case C‑270/02 Commission  v Italy  [2004] ECR I‑1559, paragraph 21, and Case C-54/05 Commission  v Finland  [2007] ECR I‑0000, paragraph 38). In either case, the national provision must be appropriate for securing the attainment of the objective pursued and not go beyond what is necessary in order to attain it (see, in particular, Joined Cases C‑388/00 and C‑429/00 Radiosistemi [2002] ECR I‑5845, paragraphs 40 to 42, and also Case C‑14/02 ATRAL  [2003] ECR I‑4431, paragraph 64).
76. In that regard, it is for the competent national authorities to show, first, that their legislation is necessary in order to attain one or more objectives mentioned in Article 30 EC or meet imperative requirements and, second, that the legislation is in conformity with the principle of proportionality (see, to that effect, Case C‑420/01 Commission  v Italy [2003] ECR I‑6445, paragraphs 30 and 31, and also Case C‑270/02 Commission  v Italy , paragraph 22, and Commission  v Finland , paragraph 38).
77. With regard to the argument put forward by the Netherlands Government that the examination of the general condition of vehicles safeguards road safety and the protection of the environment in so far as it ensures that only vehicles which satisfy Netherlands road safety and environmental requirements are allowed onto the road in the Netherlands, there is no dispute about the fact that road safety and the protection of the environment do constitute overriding reasons in the public interest capable of justifying a hindrance to the free movement of goods (see, in particular, Cura Anlagen , paragraph 59).