Paraskevas Louloudakis v Elliniko Dimosio.
Date: 2001-07-12
20 Article 1 of Order No D-247/13 of 1 March 1988 of the Minister for Finance, amended by Law No 2187/94, permits the temporary importation, exempt from corresponding customs duties and other taxes, of means of transport for private use, commercial vehicles being excluded from that scheme.
21 Article 3 thereof defines the concept of normal residence in terms substantially identical to those of Article 7(1) of the directive.
22 Article 4, relating to temporary importation for private use of a means of transport other than a commercial vehicle, sets at six months, whether continuous or not, in a 12-month period, the period during which that means of transport may remain in the country. It provides that that period may be extended by an additional nine months, unless the person concerned engages in business activity in Greece, in which case such extension is limited to a maximum of three months.
23 Article 5 sets, in principle, at six months, whether continuous or not, the period for temporary importation of a private vehicle for business use during which such a vehicle may remain in Greece. The exemption does not apply if the vehicle is used to transport persons or for the industrial or commercial transport of goods, whether for payment or not.
24 Both Article 4 and Article 5 make the granting of the exemption subject to the condition that the person concerned have his normal residence outside Greece.
25 The third and fourth paragraphs of Article 15 reproduce, in identical or substantially identical terms, Article 7(2) and (3) of the directive, relating to proof of normal residence.
The dispute in the main proceedings
The circumstances of the applicant in the main proceedings according to the information contained in the file
49 It should be recalled at the outset that, according to settled case-law, in proceedings under Article 234 EC, the Court has no jurisdiction to apply the rules of Community law to a specific case. It may, however, provide the national court with an interpretation of all relevant provisions of Community law which might be useful to it in assessing the effects of its national provisions (see, inter alia, Case 37/86 Van Gastel v Rijksdienst and Rijkskas [1987] ECR 3589, paragraph 8, and Case C-385/96 Goerres [1998] ECR I-4431, paragraph 14).
51 The criteria for determining normal residence defined by Article 7 of the directive refer both to a person's occupational and personal ties with a particular place and to the duration of those ties. Consequently they must be examined in conjunction with each other. Normal residence must, accordingly, be regarded as the place where a person has established his permanent centre of interests (Ryborg, cited above, paragraph 19).
52 It follows from Article 7(1) of the directive that that provision gives priority to personal ties where the person concerned does not have personal and occupational ties concentrated in a single Member State. Indeed, the second subparagraph gives primacy to personal ties over occupational ties where the latter are in a different place and the person concerned consequently lives in turn in two or more Member States and returns regularly to the State of his personal ties.
53 Thus, Article 7(1) of the directive provides for both occupational and personal ties to a given place to be taken into account and must be interpreted as meaning that, in the event that an overall assessment of occupational and personal ties does not suffice to locate the permanent centre of interests of the person concerned, primacy must be given, for the purposes of locating it, to personal ties.
55 In that respect, all the relevant facts must be taken into consideration in determining normal residence as the permanent centre of interests of the person concerned (Ryborg, cited above, paragraph 20), namely, in particular, the actual presence of the person concerned and of the members of his family, availability of accommodation, the place where the children actually attend school, the place where business is conducted, the place where property interests are situated, that of administrative links to public authorities and social services, inasmuch as those factors express the intention of that person to confer a certain stability on the place of connection, by reason of the continuity arising from a way of life and the development of normal social and occupational relationships.
56 So far as concerns the aspect of attendance at an educational establishment, it must be pointed out that although, according to the second subparagraph of Article 7(1) of the directive, this does not imply transfer of normal residence as regards the person concerned himself, it may none the less, considered in a family context, be evidence of such transfer as regards his children.
57 The national court must undertake an overall assessment of the data relating to ties having regard to all the evidence submitted to it.
58 Such assessment must be carried out in the light of the objective pursued by the directive. In that regard, it must be borne in mind that, according to its preamble, the directive is aimed at encouraging freedom of movement of Community residents within the Community and that the elimination of the obstacles resulting from the taxation arrangements applied to the temporary importation of certain means of transport for private or business use is particularly necessary if an economic market having features similar to those of a domestic market is to be established (Case C-389/95 Klattner [1997] ECR I-2719, paragraph 25).
59 Contrary to what the Commission suggests in its written observations, Article 10(2) of the directive must not be applied where determination of normal residence meets with difficulties in a particular case. That provision, which requires the competent authorities of the Member States, where the practical application of the directive gives rise to difficulties, to take the necessary decisions by mutual agreement, is intended to enable them to cope with any future difficulties which may arise in individual specific cases. It does not require them to cooperate in each individual case in which the application of that directive raises difficulties (Ryborg, cited above, paragraphs 34 and 35).
64 The Commission makes reference to the judgment in Case C-210/91 Commission v Greece [1992] ECR I-6735, paragraphs 19 and 20. It takes the view that, in circumstances such as those of Mr Louloudakis, the objective pursued may be attained by means of the payment of the taxes and duties due. According to the Commission, additional penalties do not appear to be justified, bearing in mind the extreme difficulty of determining normal residence. It submits that additional penalties such as those mentioned in the second and third questions are disproportionate.
67 Subject to those observations, it must be borne in mind that, in the absence of harmonisation of the Community legislation in the field of the penalties applicable where conditions laid down by arrangements under such legislation are not observed, the Member States are empowered to choose the penalties which seem appropriate to them. They must, however, exercise that power in accordance with Community law and its general principles, and consequently with the principle of proportionality (see, in particular, Case C-210/91 Commission v Greece, cited above, paragraph 19, and the case-law cited therein; Case C-36/94 Siesse [1995] ECR I-3573, paragraph 21; and Case C-213/99 De Andrade [2000] ECR I-11083, paragraph 20). The administrative measures or penalties must not go beyond what is strictly necessary for the objectives pursued and a penalty must not be so disproportionate to the gravity of the infringement that it becomes an obstacle to the freedoms enshrined in the Treaty (see, to that effect, Case C-210/91 Commission v Greece, cited above, paragraph 20).
69 In that connection, although overriding requirements of enforcement and prevention may justify national legislation setting penalties at a certain level of severity, it is nevertheless possible that penalties determined in accordance with rules such as those applicable in the main proceedings may prove to be disproportionate and constitute an obstacle to the said freedom, inasmuch as they include flat-rate penalties fixed solely on the basis of the vehicle's cubic capacity, without account being taken of the vehicle's age, and increased duty which may be as much as ten times the charges at issue. A penalty based on the sole criterion of cubic capacity could be disproportionate to the gravity of the infringement, in particular where it is associated with another heavy penalty, imposed in respect of the same infringement. The same could be true of a penalty amounting to a multiple of the charges at issue, for example ten times such charges.
70 In that regard, it is for the national court to assess whether, in view of the overriding requirements of enforcement and prevention, as well as of the amount of the taxes in question and the level of the penalties actually imposed, those penalties do not appear so disproportionate to the gravity of the infringement that they become an obstacle to the freedoms enshrined in the Treaty.
72 By its fourth question, the national court asks essentially whether, in proceedings concerning infringements relating to temporary importation of certain means of transport, the directive or any other rule of Community law requires account to be taken of the good faith of the persons concerned, so far as concerns the principle or the level of the penalty.