De Danske Bilimportører v Skatteministeriet, Told- og Skattestyrelsen.
Date: 2003-06-17
15. The Court however rejected that claim of infringement after having found that Article 95 of the Treaty could not be invoked against internal taxation imposed on imported products where there is no similar or competing domestic production, and that, in particular, that article did not provide a basis for censuring the excessiveness of the level of taxation which the Member States might adopt for particular products, in the absence of any discriminatory or protective effect ( Commission  v  Denmark , paragraph 10).
16. In paragraph 12 of  Commission  v  Denmark , the Court admittedly noted that, as it had held in Case 31/67  Stier  [1968] ECR 235, it is not permissible for the Member States to impose on products which, in the absence of comparable domestic production, escape the application of the prohibitions contained in Article 95 of the Treaty charges of such an amount that the free movement of goods within the common market would be impeded as far as those goods were concerned. It added, however, in paragraph 13 of  Commission  v  Denmark , that the only possibility of appraising an adverse effect of that kind on the free movement of goods is by reference to Article 30 of the EEC Treaty (which became Article 30 of the EC Treaty and is now, after amendment, Article 28 EC) et seq. The Commission ' s action in that case was not however based on those articles.
The main proceedings and the questions referred for a preliminary ruling
19. Since DBI took the view that that charge had been levied in breach,  inter alia , of Article 28 EC, it requested its repayment from the tax authorities, relying in particular on paragraphs 12 and 13 of  Commission  v  Denmark . In its submission, the excessive level of the registration duty made it impossible to import motor vehicles to Denmark under normal commercial conditions, to the benefit of domestic purchases of previously registered used vehicles, which were to be regarded as Danish products, in accordance with the case-law of the Court ( Commission  v  Denmark , paragraph 17, and Case C-228/98  Dounias  [2000] ECR I-577, paragraph 42).
20. The Skatteministeriet responded that, according to the case-law of the Court (see,  inter alia ,  Dounias , paragraph 39), fiscal contributions cannot be caught by Article 28 EC, since the lawfulness of domestic taxation may be assessed only in the light of Article 90 EC. It stated further that, in Case C-132/88  Commission  v  Greece  [1990] ECR I-1567, paragraph 17, the Court found that, as Community law stands at present, the Member States are at liberty to make products such as cars subject to a system of tax which increases progressively in amount according to an objective criterion and that Article 95 of the Treaty does not provide a basis for censuring the excessiveness of the level of taxation which the Member States might adopt for particular products in the light of considerations of social policy.
21. According to the Skatteministeriet, the proviso adopted by the Court in paragraphs 12 and 13 of  Commission  v  Denmark  relates only to cases in which, as a result of internal taxation, trade in the product in question ceases or is insignificant in volume. The registration duty on motor vehicles, however, is not prohibitive and the total number of motor vehicles in Denmark is comparable to that in other Member States.
22. In those circumstances the Østre Landsret decided to stay proceedings and to refer the following two questions to the Court for a preliminary ruling:
" (1) Can an indirect duty (registration duty) charged by a Member State, which in the case of new cars amounts to 105% of DKK 52 800 and 180% of the remainder of the taxable value, be a measure having an effect equivalent to a quantitative restriction on imports and for that reason prohibited under Article 28 EC (reference is made in this connection to the Court ' s judgment in Case C-47/88  Commission  v  Denmark  [1990] ECR I-4509, paragraph 13)?
(2) If the answer to Question 1 is yes: can that registration duty be justified on the grounds that are mentioned in Article 30 EC or follow from the Court ' s case-law on Article 28 EC (reference is made to Case 120/78  Rewe-Zentral  ( " Cassis de Dijon" ) [1979] ECR 649)?
"
The first question referred for a preliminary ruling
32. The scope of Article 28 EC does not extend to the obstacles to trade covered by other specific provisions of the Treaty and obstacles of a fiscal nature or having an effect equivalent to customs duties, which are covered by Articles 23 EC, 25 EC and 90 EC, do not fall within the prohibition laid down in Article 28 EC (see Joined Cases C-78/90 to C-83/90  Compagnie Commerciale de l ' Ouest and Others  [1992] ECR I-1847, paragraph 20, and  Dounias , paragraph 39).
33. Furthermore, as regards the scope of Articles 25 EC and 90 EC, it is settled case-law 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).
34. In the present case, since a charge on the registration of new motor vehicles, such as the Danish registration duty at issue in the main proceedings, is manifestly of a fiscal nature and is charged not by reason of the vehicle crossing the frontier of the Member State which introduced the charge, but upon first registration of the vehicle in the territory of that State, the charge must be regarded as part of a general system of internal dues on goods and thus examined in the light of Article 90 EC.
35. The fact that a charge of that sort is in fact imposed solely on imported new vehicles, because there is no domestic production, is not such as to cause it to be characterised as a charge having equivalent effect, for the purposes of Article 25 EC, rather than internal taxation, within the meaning of Article 90 EC, since it is part of a general system of internal dues applied systematically to categories of vehicles in accordance with objective criteria irrespective of the origin of the products (see, to that effect, Case 90/79  Commission  v  France  [1981] ECR 283, paragraph 14).
36. Since the applicability of Article 90 EC in the main proceedings is thus established, it should be noted that that article expressly 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 (see  Commission  v  Denmark , paragraph 8).
37. It should also be noted that, as paragraph 9 of  Commission  v  Denmark  shows, the aim of Article 90 EC as a whole is to ensure the 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. Thus Article 90 EC must guarantee the complete neutrality of internal taxation as regards competition between domestic products and imported products.
38. On the other hand, Article 90 EC cannot be invoked against internal taxation imposed on imported products where there is no similar or competing domestic production. In particular, it does not provide a basis for censuring the excessiveness of the level of taxation which the Member States might adopt for particular products, in the absence of any discriminatory or protective effect (see  Commission  v  Denmark , paragraph 10).
40. It is true, as DBI pointed out, that the Court held, in paragraph 12 of  Commission  v  Denmark , that it is not permissible for the Member States to impose on products which, in the absence of comparable domestic production, escape the application of the prohibitions contained in Article 90 EC charges of such an amount that the free movement of goods within the common market would be impeded as far as those goods were concerned.
42. In those circumstances, it cannot be considered that a charge such as the Danish registration duty has ceased to be internal taxation, within the meaning of Article 90 EC, and should be classified as a measure having equivalent effect to a quantitative restriction, for the purposes of Article 28 EC, nor is it appropriate to examine the scope of the prov iso adopted by the Court in paragraphs 12 and 13 of  Commission  v  Denmark .