Regionalna Mitnicheska Direktsia - Plovdiv v Petar Dimitrov Kalinchev.
Date: 2010-06-03
22. First of all, it should be noted that the scope of Directive 92/12 is defined in Article 3(1) of the directive by reference to three categories of products constituting an exhaustive list, which correspond, as is clear from the third recital in the preamble to the directive, to goods which are treated as subject to excise duty ‘in all the Member States’. That list does not include motor vehicles, which are thus excluded from the scope of that directive (Case C‑392/05 Alevizos  [2007] ECR I‑3505, paragraph 36).
23. Next, concerning products other than those referred to in Article 3(1) of Directive 92/12, in accordance with the first subparagraph of Article 3(3), Member States retain the right to introduce or maintain taxes which are levied on those products provided that those taxes do not give rise to border-crossing formalities in trade between Member States (Joined Cases C‑145/06 and C‑146/06 Fendt Italiana  [2007] ECR I‑5869, paragraph 44).
25. It should be noted that the first subparagraph of Article 3(3) of Directive 92/12 could apply only if the requirement to submit a declaration were to be regarded as a ‘border-crossing formality’ giving rise to the levying of excise duty (Case C‑313/05 Brzeziński  [2007] ECR I‑513, paragraph 45).
27. It is for the referring court to ascertain whether the legislation as a whole at issue in the main proceedings may be interpreted in the sense advocated by the Bulgarian Government. Although the declaration had to be submitted at the time of the intra-Community acquisition of the vehicle, and thus at the time of crossing a border, that formality would, however, relate not to that ‘crossing’ for the purposes of the first subparagraph of Article 3(3) of Directive 92/12, but to the obligation to pay the excise duty. In that case, the purpose of that declaration being to ensure payment of the debt corresponding to the excise duty, that formality would thus relate to the event giving rise to the excise duty ( Brzeziński , paragraphs 47 and 48).
30. It is apparent from settled case-law, first, that Article 110 TFEU prohibits the imposition on products from other Member States of internal taxation in excess of that imposed on similar domestic products or internal taxation of such a nature as to afford indirect protection to other products (Case C‑47/88 Commission  v Denmark  [1990] ECR I‑4509, paragraph 8).
31. Secondly, in relation to the taxation of imported used vehicles, Article 110 TFEU seeks to ensure the complete neutrality of internal taxation as regards competition between products already on the domestic market and imported products (Case C‑426/07 Krawczyński  [2008] ECR I‑6021, paragraph 31).
32. Thirdly, it should be noted that domestic manufacture of motor vehicles in Bulgaria is not a condition for a finding that a market for used vehicles exists in that Member State. A product becomes a domestic product as soon as it has been imported and placed on the market. Imported used cars and those bought locally constitute similar or competing products. Article 110 TFEU therefore applies to the registration duty charged on the importation of used cars (see Commission  v Denmark , paragraph 17).
36. As a preliminary point, it must be noted that an excise duty such as that imposed by the national legislation at issue in the main proceedings comes under the general system of internal taxation on goods and must therefore be examined solely in the light of Article 110 TFEU ( Krawczyński , paragraph 29).
37. The Court has held that Article 110 TFEU supplements the provisions on the abolition of customs duties and charges having equivalent effect. Its aim is to ensure free movement of goods between the Member States in normal conditions of competition by the elimination of all forms of protection which may result from the application of internal taxation that discriminates against products from other Member States ( Brzeziński , paragraph 27, and Krawczyński , paragraph 30).
38. Furthermore, a system of taxation may be considered compatible with Article 110 TFEU only if it is so established and arranged as to exclude any possibility of imported products being taxed more heavily than similar domestic products, so that it cannot, in any event, have discriminatory effect ( Brzeziński , paragraph 40; order in Case C‑134/07 Kawala  [2007] ECR I‑10703, paragraph 29; and Krawczyński , paragraph 32).
39. According to settled case-law, the first paragraph of Article 110 TFEU 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‑393/98 Gomes Valente  [2001] ECR I‑1327, paragraph 21; Case C‑387/01 Weigel  [2004] ECR I‑4981, paragraph 67; Brzeziński , paragraph 29; and Case C‑74/06 Commission  v Greece  [2007] ECR I‑7585, paragraph 25). In that respect, it must be borne in mind that, in order to apply Article 110 TFEU, not only the rate of direct or indirect internal taxation on domestic and imported products but also the basis of assessment for levying that tax must be taken into consideration (see Case 74/76 Iannelli & Volpi  [1977] ECR 557, paragraph 21, and Commission  v Denmark , paragraph 18).
40. Consequently, it is necessary to establish whether the excise duty at issue in the main proceedings is levied in the same way both on a used vehicle imported into Bulgaria and on a used vehicle of the same type, with the same characteristics and in the same condition, imported as a new vehicle into Bulgaria and already registered in that country, as those two categories of vehicles constitute ‘similar’ products within the meaning of the first paragraph of Article 110 TFEU.
42. In that regard, the Court has acknowledged that, in order to avoid any discrimination, it is necessary that 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, propulsion method, make or model produce the desired outcome that the tax charged on imported used vehicles in no case exceeds the amount of the residual tax incorporated in the value of similar used vehicles already registered in the State (see, to that effect, Weigel , paragraph 75). Such a calculation is in particular necessary in order to ensure that the excise duty in question is neutral for tax purposes in relation to imported used vehicles.
50. It is only exceptionally that the Court may, in application of the general principle of legal certainty inherent in the Community legal order, be moved to restrict for any person concerned the opportunity of relying on a provision which it has interpreted with a view to calling in question legal relationships established in good faith. Two essential criteria must be fulfilled before such a limitation can be imposed, namely that those concerned should have acted in good faith and that there should be a risk of serious difficulties (see, inter alia, Case C‑402/03 Skov and Bilka  [2006] ECR I‑199, paragraph 51, and Brzeziński , paragraph 56 and the case-law cited).
51. More specifically, the Court has taken that step only in quite specific circumstances, where there was a risk of serious economic repercussions owing in particular to the large number of legal relationships entered into in good faith on the basis of rules considered to be validly in force and where it appeared that individuals and national authorities had been led to adopt practices which did not comply with Community legislation by reason of objective, significant uncertainty regarding the implications of Community provisions, to which the conduct of other Member States or the Commission may even have contributed (see, inter alia, Case C‑423/04 Richards  [2006] ECR I‑3585, paragraph 42, and Brzeziński , paragraph 57).
52. It is also settled case-law that the financial consequences which might ensue for a Member State from a preliminary ruling do not in themselves justify limiting the temporal effects of the ruling (Case C‑184/99 Grzelczyk  [2001] ECR I‑6193, paragraph 52; Case C‑209/03 Bidar  [2005] ECR I‑2119, paragraph 68; and Brzeziński , paragraph 58).
54. At the hearing, the Bulgarian Government produced figures relating to the amount presumed owing following a possible unfavourable judgment by the Court. However, the Court has not been provided with a breakdown of those figures, which would have afforded the opportunity to assess what proportion of that total would give rise to reimbursement. Moreover, only the excise duty amounts exceeding those corresponding to the residual duty included in similar used vehicles originating from the Member State concerned must be reimbursed ( Brzeziński , paragraph 59).
55. Consequently, the Court finds that the risk of serious economic difficulties, as contemplated in the case-law referred to in paragraphs 50 to 52 of this judgment, such as to justify placing a temporal limitation on the effects of this judgment, has not been established.