Ministério Público and António Gomes Valente v Fazenda Pública.
Date: 2001-02-22
16 In that respect, it should be remembered, first, that, according to the third paragraph of Article 177 of the Treaty, where a question of Community law is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal must bring the matter before the Court of Justice (Case C-337/95 Parfums Christian Dior v Evora [1997] ECR I-6013, paragraph 24).
17 According to case-law that is well established, that obligation to refer is based on cooperation, with a view to ensuring the proper application and uniform interpretation of Community law in all the Member States, between national courts, in their capacity as courts responsible for the application of Community law, and the Court of Justice (see, in particular, Case 283/81 CILFIT and Lanificio di Gavardo v Italian Ministry of Health [1982] ECR 3415, paragraph 7; Parfums Christian Dior, cited above, paragraph 25), and it is particularly designed to prevent a body of national case-law that is not in accordance with the rules of Community law from being established in any Member State (see, in particular, Case 107/76 Hoffman-La Roche v Centrafarm [1977] ECR 957, paragraph 5, and Joined Cases 35/82 and 36/82 Morson and Jhanjan v Netherlands State [1982] ECR 3723, paragraph 8).
21 As for the question whether the taking into account of the real depreciation of a second-hand car, to which the Nunes Tadeu judgment refers, requires an expert study of each vehicle, excluding the possibility of it being calculated in a general and abstract manner with the aid of a criterion laid down by statute, it should be remembered at the outset that, according to settled case-law, the first paragraph of Article 95 of the Treaty is infringed where the tax charged on the imported product and that charged on the similar domestic product are calculated in a different manner on the basis of different criteria which lead, if only in certain cases, to higher taxation being imposed on the imported product (Case C-375/95 Commission v Greece [1997] ECR I-5981, paragraph 20, and case-law cited therein; Case C-213/96 Outokumpu [1998] ECR I-1777, paragraph 34).
22 In its judgment in Case C-47/88 Commission v Denmark [1990] ECR I-4509, at paragraph 21, the Court of Justice held that Article 95 of the Treaty precludes a Member State from applying to imported second-hand vehicles a registration duty calculated on the basis of a fixed taxable value never capable of amounting to less than 90% of the taxable value of the vehicle when new, thereby limiting the depreciation of those vehicles to 10%, whatever their age or condition. In the Court's view, the levying of a registration duty for which the basis of assessment is at least 90% of the value of the vehicle when new generally constitutes manifest overtaxation of those vehicles in comparison with the residual registration duty in the case of previously-registered used cars bought on the national market, whatever their age or condition (Commission v Denmark, paragraph 20).
23 In paragraph 15 of its judgment in Nunes Tadeu, the Court held that a rule which restricts the reduction in the amount of the tax charged on new cars to 10%, without having regard to the vehicle's actual depreciation, discriminates against imported second-hand cars. It therefore held it incompatible with Article 95 of the Treaty for a Member State to charge on second-hand cars from another Member State a tax which, being calculated without taking the vehicle's actual depreciation into account, exceeds the residual tax incorporated in the value of similar second-hand motor vehicles already registered in the national territory (Nunes Tadeu, paragraph 20).
24 It does not, however, follow from the case-law cited in paragraphs 21 to 23 of this judgment that the actual depreciation of the vehicles cannot be taken into account otherwise than by means of an assessment or expert examination of each of them. Avoiding the administrative burden inherent in such a system, a Member State might be able to 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, method of propulsion, make or model, a value for second-hand vehicles which, as a general rule, would be very close to their actual value.
25 In drawing up those scales, the authorities of a Member State might refer to a guide indicating the average prices of second-hand vehicles in the national market or to a list of average current prices used as a reference in the sector.
26 It should, however, be added that, in order for a system of taxation of imported second-hand cars which takes into account the actual depreciation of the vehicles on the basis of general criteria to be compatible with Article 95 of the Treaty, it would have to be arranged in such a way, making allowance for the reasonable approximations inherent in any system of that type, as to exclude any discriminatory effect.
28 As regards the first of those points, although the application of a taxation scale for imported second-hand cars based on a single criterion of depreciation as in the case of the legislation at issue in the main proceedings, which, in this case, was based on the number of years for which the vehicle was used is not in itself contrary to the first paragraph of Article 95 of the Treaty, it nevertheless appears that taking other factors of depreciation into account, such as the make, the model, the kilometrage, the method of propulsion, the mechanical state or the state of maintenance of the vehicle, is likely to result in the fixed scale reflecting the actual depreciation of vehicles much more precisely and permits the aim of ensuring that the tax charged on imported second-hand vehicles does not in any case exceed the amount of the residual tax incorporated in the value of similar second-hand vehicles already registered in the national territory to be achieved much more easily.
29 In this case, the Portuguese Government has not been able to demonstrate that depreciating factors other than the number of years' use of the vehicles had been taken into account in order to determine the percentages of reduction in the tax, and, moreover, it acknowledged at the hearing that the scale of reduction laid down by Decree-Law No 40/93 did not reflect with sufficient precision the actual depreciation of vehicles.
32 It is true that such a possibility, for the owner of an imported vehicle to challenge the application of the fixed scale to his vehicle by demonstrating that it leads to taxation higher than the amount of the residual tax incorporated in the value of similar second-hand vehicles already registered in the national territory, would prevent any possible discriminatory effects of a system of taxation based on such a scale.
43 That argument cannot be accepted. A national tax system which is liable to eliminate a competitive advantage held by imported products over domestic products would be manifestly incompatible with Article 95 of the Treaty, which seeks to guarantee that internal charges have no effect on competition between domestic and imported products (Nunes Tadeu, paragraph 18).