Criminal proceedings against Claude Nadin, Nadin-Lux SA (C-151/04) and Jean-Pascal Durré (C-152/04).
Date: 2005-12-15
31. Since the essential characteristic of an employment relationship within the meaning of Article 39 EC is the fact that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration, any activity which a person performs outside a relationship of subordination must be classified as an activity pursued in a self-employed capacity for the purposes of Article 43 EC (see Case C‑268/99 Jany and Others  [2001] ECR I-8615, paragraph 34 and the decisions cited there).
34. The provisions of the Treaty on 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 (Case C-464/02 Commission  v Denmark  [2005] ECR I-0000, paragraph 34, and the decisions cited there).
35. Provisions which preclude or deter a national of a Member State from leaving his country of origin in order to exercise his right to freedom of movement therefore constitute an obstacle to that freedom even if they apply without regard to the nationality of the workers concerned (Case C‑415/93 Bosman  [1995] ECR I-4921, paragraph 96, and Commission  v Denmark , paragraph 35).
36. With regard to the obligation to register in Denmark a company car made available to employees residing in Denmark by a company established in another Member State, the Court has held that such obligation constitutes a barrier to freedom of movement for workers (see Commission  v Denmark , paragraphs 46 and 52).  There can be no doubt that an obligation to register, such as that at issue in the cases in the main proceedings, also constitutes a barrier to freedom of movement in so far as it imposes that obligation on self-employed workers.
39. Such a measure could be allowed only as a derogation expressly provided for by Article 46(1) EC or if it pursued a legitimate aim compatible with the Treaty and was justified by overriding reasons in the public interest.  But even if that were so, its application would still have to be such as to ensure attainment of the aim in question and not go beyond what is necessary for that purpose (see, by analogy, Commission  v Denmark , paragraph 53, and the decisions cited there).
Concerning the justification of the restriction on the free movement of persons
40. Subject to certain exceptions which are not relevant here, the taxation of motor vehicles has not been harmonised. Member States are therefore free to exercise their powers of taxation in that area, provided they do so in compliance with Community law (Case C‑451/99 Cura Anlagen  [2002] ECR I-3193, paragraph 40).
41. It is clear from paragraphs 75 to 78 of Commission  v Denmark  that a Member State may levy a registration tax on a company vehicle made available to a worker residing in that State by a company established in another Member State when it is intended that that vehicle should be used essentially in the first Member State on a permanent basis or where it is in fact used in that manner.
42. It is for the national court to decide whether the workers in question have made such use of the vehicles made available to them.
43. If they have not, an obligation to register such as that at issue in the cases in the main proceedings is contrary to the principle of freedom of movement for persons and cannot be justified by the arguments put forward in these cases, especially by the Belgian Government.
44. First of all, paragraphs 80 and 81 of Commission  v Denmark  make it clear that, if the conditions set out in paragraph 39 above have not been met, the aim of preventing tax avoidance cannot justify a tax and, in consequence, an obligation to register in a situation such as that in question in the cases in the main proceedings.
45. So far as prevention of abuse is concerned, it follows from the case-law, in particular from Case C-212/97 Centros  [1999] ECR I-1459, paragraph 24, that a Member State is entitled to take measures designed to prevent certain of its nationals from attempting, under cover of the rights created by the Treaty, improperly to circumvent their national legislation or to prevent individuals from improperly or fraudulently taking advantage of provisions of Community law.
46. However, the fact that a self-employed worker resident in Belgium uses a company car made available to him by the company for which he works established in another Member State cannot form the basis for a general presumption of abuse (see, to that effect, Commission  v Denmark , paragraph 67).
47. Furthermore, the Court has held before that Articles 39 EC and 43 EC afford the same legal protection (Case C-363/89 Roux  [1991] ECR I-273, paragraph 23).
49. The argument based on road safety does indeed constitute an overriding reason in the public interest capable of justifying a hindrance to freedom of movement for persons ( Cura Anlagen , paragraph 59).
50. However, when a vehicle has undergone roadworthiness testing in a Member State, the principle of equivalence and mutual recognition laid down in Article 3(2) of Council Directive 96/96/EC of 20 December 1996 on the approximation of the laws of the Member States relating to roadworthiness tests for motor vehicles and their trailers (OJ 1997 L 46, p. 1) requires all the other Member States to recognise the certificate issued on that occasion, but does not prevent them from requiring additional tests for the purposes of registration in their territory, provided those tests are not already covered by that certificate ( Cura Anlagen , paragraph 62).
52. As to the environmental policy argument, it follows, admittedly, from paragraph 68 of Cura Anlagen  that a consumption tax such as that at issue in that case may be intended to serve the general interest of discouraging the purchase or possession of vehicles with heavy fuel consumption.  Nevertheless, on the one hand, the United Kingdom Government has not explained how the environment may be protected by an obligation to register such as that at issue in the cases in the main proceedings and, on the other, the reasons given by the Belgian Government for requiring a company vehicle to be registered are tax objectives.
53. Nor, when a company vehicle is not used in the conditions listed in paragraph 41 above, is the obligation to register at issue justified if the self-employed worker may additionally use the company vehicle for private purposes ( Commission  v Denmark , paragraph 51).