Commission of the European Communities v Hellenic Republic.
Date: 1997-10-23
16 It should first of all be noted that the special consumer tax does not apply to domestic used-car transactions because it is charged only once, when the vehicle is first purchased within the country, and part of it remains incorporated in the value of those cars (for a similar tax, see Case C-345/93 Nunes Tadeu [1995] ECR I-479, paragraph 10).
17 It is common ground that imported used cars and those bought locally constitute similar or competing products and Article 95 therefore applies to the special consumer tax charged on the importation of used cars (see, to this effect, Case C-47/88 Commission v Denmark [1990] ECR I-4509, paragraph 17).
19 It should be borne in mind that, for the purposes of applying Article 95 of the Treaty, not only the rate of direct and indirect internal taxation on domestic and imported products but also the basis of the assessment and the detailed rules for levying the tax must be taken into consideration (Commission v Denmark, cited above, paragraph 18; see also Case C-327/90 Commission v Greece [1992] ECR I-3033, paragraph 11).
20 Furthermore, it has been held on several occasions that the first paragraph of Article 95 is infringed where the taxation on the imported product and that 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, in particular, Case 45/75 Rewe-Zentrale v Hauptzollamt Landau [1976] ECR 181, paragraph 15, and Commission v Greece, cited above, paragraph 12).
22 It should be noted that, as the Commission has observed, in general the annual depreciation in the value of cars is considerably more than 5%, that that depreciation is not linear, especially in the first years when it is much more marked than subsequently, and, finally, that vehicles continue to depreciate more than four years after being put into circulation.
23 It follows that the special consumer tax on imported used cars is usually higher than the proportion of the tax still incorporated in the value of used cars already registered and purchased on the Greek market (to the same effect, see Nunes Tadeu, cited above, paragraph 14).
29 However, the pursuit of such an objective does not relieve a Member State from its duty to observe the rule of non-discrimination laid down in Article 95 of the Treaty. According to settled case-law, a system of taxation can be considered compatible with Article 95 of the Treaty only if it is proved to be so structured as to exclude any possibility of imported products being taxed more heavily than domestic products, so that it cannot in any event have discriminatory effect (see, in particular, Case C-90/94 Haahr Petroleum v benrå Havn and Others [1997] ECR I-0000, paragraph 34).
32 It should first be considered whether this ground of complaint is admissible, even though this point has not been taken by the Greek Government (Cases C-362/90 Commission v Italy [1992] ECR I-2353, paragraph 8, and C-151/96 Commission v Ireland [1997] ECR I-0000, paragraph 10).
35 The Court has consistently held that the Commission must indicate, in any application made under Article 169 of the Treaty, the specific complaints on which the Court is asked to rule and, at the very least in summary form, the legal and factual particulars on which those complaints are based (see, inter alia, Case C-52/90 Commission v Denmark [1992] ECR I-2187, paragraph 17).  An application does not satisfy that requirement if the Commission's complaints are not accurately set out in it and simply appear by way of reference to the reasons set out in the letter of formal notice and in the reasoned opinion (Case C-43/90 Commission v Germany [1992] ECR I-1909, paragraphs 7 and 8).
37 According to settled case-law, an application under Article 169 of the Treaty is circumscribed by the pre-litigation procedure provided for by that article and, consequently, the Commission's reasoned opinion and the application must be based on identical grounds of complaint (see, in particular, case 298/86 Commission v Belgium [1988] ECR 4343, paragraph 10).
38 The Court did, however, make it clear that that requirement could not go so far as to make it necessary that, irrespective of the circumstances, the national provisions mentioned in the reasoned opinion and in the application should be completely identical.  Where a change in the legislation occurred between those two phases of the procedure, it is sufficient that the system established by the legislation contested in the pre-litigation procedure has as a whole been maintained by the new measures which were adopted by the Member State after the issue of the reasoned opinion and have been challenged in the application (Case C-105/91 Commission v Greece [1992] ECR I-5871, paragraph 13).
47 However, even assuming the existence of those difficulties to be established, it must be pointed out that they cannot justify the application of internal taxation which discriminates against products from other Member States in breach of Article 95 of the Treaty (see, to that effect, Case C-327/90 Commission v Greece, cited above, paragraph 24, and Nunes Tadeu, cited above, paragraph 19).