Harald Weigel and Ingrid Weigel v Finanzlandesdirektion für Vorarlberg.
Date: 2004-04-29
44. The fact that the question of the application of Directive 83/183 was canvassed only by Mr and Mrs Weigel and by the Commission and was not actually submitted to the Court by the national court does not prevent the Court from considering it. Even though, strictly speaking, the national court has directed its question solely to the interpretation of Articles 39 EC and 12 EC, the Court is not thereby precluded from providing the national court with all those elements for the interpretation of Community law which may be of assistance in adjudicating on the case pending before it, whether or not that court has specifically referred to them in its questions (see, to that effect, Case C-241/89 SARPP  [1990] ECR I‑4695, paragraph 8, Case C-315/92 Verband Sozialer Wettbewerb  (‘ Clinique ’) [1994] ECR I-317, paragraph 7, and Case C-87/97 Consorzio per la tutela del formaggio Gorgonzola [1999] ECR I-1301, paragraph 16).
– Directive 83/183
47. A tax such as the NoVA base tax must be regarded as falling outside the scope of the exemption in Article 1(1) of Directive 83/183. That provision concerns certain specified types of charge which normally apply to property imported permanently. Contrary to what the Commission submits, a consumption tax, such as the NoVA base tax, cannot be regarded as a tax linked to importation as such. The first four subparagraphs of Paragraph 1 of the NoVAG read together show that the operative event giving rise to the NoVA is not importation. In the case of subparagraph 3, which is at issue in the main proceedings, the operative event attracting the NoVA is first-time registration in the State, which is not necessarily linked to the act of importation.
51. According to the case-law of the Court, Article 39 EC also prohibits national rules which, although they apply without regard to the nationality of the workers concerned, constitute an obstacle to their freedom of movement (see Case C‑415/93 Bosman  [1995] ECR I-4921, paragraph 96).
52. The provisions of the Treaty relating to freedom of movement for persons are intended to facilitate the pursuit by Community citizens of occupational activities of all kinds throughout the Community, and preclude measures which might place Community citizens at a disadvantage when they wish to pursue an economic activity in the territory of another Member State (see, in particular, Bosman , cited above, paragraph 94, Case C-18/95 Terhoeve [1999] ECR I-345, paragraph 37, and Case C-190/98 Graf  [2000] ECR I-493, paragraph 21).
55. However, the Treaty offers no guarantee to a worker that transferring his activities to a Member State other than the one in which he previously resided will be neutral as regards taxation. Given the disparities in the legislation of the Member States in this area, such a transfer may be to the worker’s advantage in terms of indirect taxation or not, according to circumstance. It follows that, in principle, any disadvantage, by comparison with the situation in which the worker pursued his activities prior to the transfer, is not contrary to Article 39 EC if that legislation does not place that worker at a disadvantage as compared with those who were already subject to it (see, in relation to social security, Joined Cases C‑393/99 and C-394/99 Hervein and Others  [2002] ECR I-2829, paragraph 51).
57. Article 12 EC, which enshrines the general principle that there can be no discrimination on grounds of nationality, applies independently only to situations governed by Community law in respect of which the Treaty lays down no specific prohibition of discrimination (see Case C-100/01 Oteiza Olazabal  [2002] ECR I‑10981, paragraph 25, and Case C-289/02 AMOK  [2003] ECR I-0000, paragraph 25).
58. As far as the free movement of workers is concerned, that principle is implemented and given specific effect by Article 39 EC.
59. There is therefore no need to express a view on Article 12 EC in so far as the facts at issue in the main proceedings fall within the scope of Article 39 EC.
63. Also, as far as the respective spheres of application of Articles 25 EC and 90 EC are concerned, the Court has consistently held that provisions relating to charges having equivalent effect and those relating to discriminatory internal taxation cannot be applied together, with the result that, under the system established by the Treaty, the same charge cannot belong to both categories at the same time (see Case C-234/99 Nygård  [2002] ECR I-3657, paragraph 17, Case C-101/00 Tulliasiamies and Siilin  [2002] ECR I-7487, paragraph 115, and Case C-383/01 De Danske Bilimportører  [2003] ECR I-6065, paragraph 33).
– Articles 23 EC and 25 EC
64. The Court has consistently held (see, in particular, Case C-90/94 Haahr Petroleum  [1997] ECR I-4085, paragraph 20, and Case C-213/96 Outokumpu  [1998] ECR I-1777, paragraph 20) that any pecuniary charge, whatever its designation and mode of application, which is imposed unilaterally on goods by reason of the fact that they cross a border, and which is not a customs duty in the strict sense, constitutes a charge having equivalent effect within the meaning of Articles 23 EC and 25 EC. However, such a charge may not be so characterised if it forms part of a general system of internal dues applying systematically to categories of products according to objective criteria applied without regard to the origin of the products, in which case it falls within the scope of Article 90 EC (see, to that effect, Nygård , paragraph 19).
65. In the present case, the NoVA base tax is manifestly of a fiscal nature and it is charged not by reason of the vehicle crossing the border of the Member State which established it, but in view of other operative events, of which first-time registration of the vehicle in that State is one. It must therefore be regarded as part of a general system of internal dues on goods and hence examined in the light of Article 90 EC (see, to that effect, De Danske Bilimportører , paragraph 34).
– Article 90 EC
66. As far as the taxation of imported used cars is concerned, the Court has held that Article 90 EC seeks to guarantee the complete neutrality of internal taxation as regards competition between products already on the domestic market and imported products (see, to that effect, Commission v Denmark , paragraph 9, Nunes Tadeu , paragraph 18, and Tulliasiamies and Siilin , paragraph 52).
67. According to settled case-law, the first paragraph of Article 90 EC 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 (see Case C-375/95 Commission v Greece [1997] ECR I‑5981, paragraphs 20 and 29, Outokumpu , paragraph 34, and Case C-393/98 Gomes Valente  [2001] ECR I-1327, paragraph 21).
69. However, the tax burden on both categories of used car is the same only if the amount of a consumption tax such as the NoVA base tax charged on used cars from another Member State does not exceed the amount of the residual NoVA base tax incorporated in the value of a similar used car already registered in the State (see, to that effect, Nunes Tadeu , paragraph 20, and Gomes Valente , paragraph 23).
70. In that regard, the Court has held that it is contrary to the first paragraph of Article 90 EC to charge tax on imported used motor vehicles based on a value which is higher than the real value of the vehicle with the result that they are taxed more heavily than similar used cars on the domestic market (see, to that effect, Commission v Denmark , cited above, paragraph 22). It is therefore necessary, in taxing imported used cars, to take account of their actual depreciation.
71. To avoid discriminatory taxation, the taxable value imputed to the imported used vehicle by the revenue authorities should faithfully reflect the value of a similar used vehicle already registered on the domestic market.
73. With regard to such a valuation process, the Court has acknowledged that although 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, to avoid the administrative burden inherent in such a system, a Member State may 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, mileage, general condition, fuel type, make or model, a value for second-hand vehicles which, as a general rule, is very close to their actual value ( Gomes Valente , paragraph 24).
74. The Court has also accepted that in drawing up those scales, the authorities of a Member State may 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 ( Gomes Valente , paragraph 25).
75. To avoid any discrimination, the set values based on the Eurotax rates must reflect the actual depreciation of vehicles precisely and produce the desired outcome that the tax charged on imported second-hand vehicles in no case exceeds the amount of the residual tax incorporated in the value of similar second-hand vehicles already registered in the State.
77. Disputing that the NoVA base tax is calculated on the basis of fair market value, Mr and Mrs Weigel submit, inter alia, that second-hand car prices were lower in Germany than in Austria. Referring to paragraph 18 of the Nunes Tadeu judgment, cited above, they argue in particular that the tax in question eliminates the competitive advantage which those vehicles would hold on the Austrian market in its absence.
78. In that regard, it should be observed that the Court has already held that 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 90 EC ( Nunes Tadeu , paragraph 18).
83. The file shows that the 20% surcharge applies only in very exceptional circumstances to purely domestic events. However, it should be recalled that a charge which is imposed on both imported products and domestic products but in practice applies almost exclusively to imported products because domestic production is extremely small does not constitute a charge having an effect equivalent to a customs duty on imports within the meaning of Articles 23 EC and 25 EC if it is part of a general system of internal dues applied systematically to categories of products in accordance with objective criteria irrespective of the origin of the products. It therefore constitutes internal taxation within the meaning of Article 90 EC (Case 193/85 Cooperativa Co-Frutta  [1987] ECR 2085, paragraph 14, and Case C-343/90 Lourenço Dias  [1992] ECR I-4673, paragraph 53).
85. Community law does not as yet restrict the freedom of each Member State to establish a tax system which differentiates between certain products, even products which are similar within the meaning of the first paragraph of Article 90 EC, on the basis of objective criteria. Such differentiation is compatible with Community law, however, only if it pursues objectives of economic policy which are themselves compatible with the requirements of the Treaty and secondary legislation, and if the detailed rules are such as to avoid any form of discrimination, direct or indirect, against imports from other Member States or any form of protection of competing domestic products (see, to this effect, Case 196/85 Commission v France  [1987] ECR 1597, paragraph 6, and Outokumpu , paragraph 30).
86. Consequently, the Court has already held that a criterion for charging higher taxation which by definition can never be fulfilled by similar domestic products cannot be considered to be compatible with the prohibition of discrimination laid down in Article 90 EC. Such a system has the effect of excluding domestic products in advance from the heaviest taxation (Case 319/81 Commission v Italy  [1983] ECR 601, paragraph 17). Likewise, the Court has held that such differential taxation is incompatible with Community law if the products most heavily taxed are, by their very nature, imported products (Case 106/84 Commission v Denmark [1986] ECR 833, paragraph 21).